Slaying “Leviathan” (Or Not): The Practical Impact (Or Lack Thereof) of a Return to a “Traditional” Non-Delegation Doctrine

Administrative agencies play an integral role in the everyday lives of all Americans. Although it would be impossible to point to a single cause of the administrative state’s growth since the New Deal era, the Supreme Court’s acquiescence in congressional delegation of legislative authority is certainly one part of the equation. Since the early twentieth century, the Supreme Court has employed the so-called “intelligible principle” test to determine when Congress unconstitutionally delegates authority. In the century since the inception of the “intelligible principle” test, however, the Court has stricken down only two statutes as such unconstitutional delegations of legislative authority. For better or worse, this lax approach to delegation has permitted administrative agencies to gain increasingly broad authority.

Some believe, however, that a dissent authored by Justice Neil Gorsuch in a recent Supreme Court case, Gundy v. United States, marked the beginning of the end for the “intelligible principle” test and, thereby, the modern administrative state. This Note takes on the latter concern. It argues that a return to the traditional view of the nondelegation doctrine advocated by Justice Gorsuch does not compel the unwinding of the modern administrative state. It does so by applying the traditional tests to two modern statutes, both of which have received sustained and recent constitutional doubt under even the permissive “intelligible principle” test. This Note demonstrates that both statutes likely would survive nondelegation scrutiny under the traditional tests. Taking these statutes as an apt—albeit imperfect—proxy for the administrative state, this Note thus demonstrates that a return to a traditional nondelegation doctrine would not result in the sea-change in administrative law that some have predicted.

Introduction

Administrative agencies are an integral part of the modern American legal landscape.1.See, e.g., J. Harvie Wilkinson III, Assessing the Administrative State, 32 J.L. & Pol. 239, 243 (2017) (describing the “American regulatory landscape” as a “diverse set of institutions . . . that, together, seem to sprawl over just about every facet of modern life”).Show More For better or worse, the so-called “administrative state” has continued to grow from its inception in the New Deal era forward into the twenty-first century.2.See id. at 242–44 (describing the growth of the administrative state from the New Deal era to modern day).Show More Today, administrative agencies oversee how we vote,3.52 U.S.C. § 30106 (Supp. II 2012) (Federal Election Commission).Show More how we retire,4.42 U.S.C. § 901 (2012) (Social Security Administration).Show More the food we eat,5.21 U.S.C. § 393 (2012) (Food and Drug Administration).Show More the shows we watch on television,6.47 U.S.C. § 151 (2012) (Federal Communications Commission).Show More and much more. While one would be hard-pressed to pin down any one entity responsible7.Indeed, Congress must legislate, the Executive must act pursuant to that legislation, and the courts must stay out of the way.Show More for the growth of this “fourth branch,” at least part of the credit lies with the judicial branch. Courts repeatedly have played a role in granting increased authority to this new “Leviathan,”8.This term is frequently used to refer to the administrative state. See e.g., Wilkinson, supra note 1, at 242 (referring to the administrative state as an “impersonal leviathan”); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Yale L.J. 266, 281 (2013) (“[W]e must appreciate the crucial role of the newly expanded federal administrative state—the leviathan—in providing legislative history to the Court.”); Jamison E. Colburn, “Democratic Experimentalism”: A Separation of Powers for Our Time?, 37 Suffolk U. L. Rev. 287, 287 (2004); Marek D. Steedman, Taming Leviathan, 52 Tulsa L. Rev. 621 (2017); David French, John Roberts Throws the Administrative State a Lifeline, Nat’l Rev. (June 26, 2019), https://www.nationalreview.com/2019/06/john-roberts-throws-the-administrative-state-a-lifeline/ [https://perma.cc/B4SX-4GZJ] (referring to the “federal administrative leviathan”).Show More tacitly approving of its continued expansion in case after case.

One way in which the judiciary has acquiesced in the administrative state’s growth is through the judiciary’s reluctance to invoke the nondelegation doctrine as one means by which to rein in the authority granted.9.Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1240 (1994) (pointing out that it is “not . . . for lack of opportunity” that the Court “has not invalidated a congressional statute on nondelegation grounds since 1935”).Show More In 1928, the Supreme Court articulated what has become the modern standard for determining when Congress goes too far in its delegation of authority to administrative agencies—what is referred to as the “intelligible principle” test.10 10.J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).Show More On only two occasions since that time, both in 1935, has the Supreme Court stricken down a duly enacted statute on the grounds that the law was an unconstitutional delegation of legislative authority.11 11.Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935).Show More Since then, the Court has routinely upheld broad delegations of authority to administrative agencies, citing the “intelligible principle” test as a pro-forma step leading to the delegation’s inevitable approval.12 12.See infra note 43 (collecting cases in which the Court applied the “intelligible principle” test).Show More This has led many who are skeptical of the constitutionality of the increasingly large role agencies play in the government to mourn that the nondelegation doctrine is nothing more than a dead letter.13 13.See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 404 (2017) (arguing that there is not “much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order”); Lawson, supra note 9, at 1237–41 (“Thus, the demise of the nondelegation doctrine . . . has encountered no serious real-world legal or political challenges, and none are on the horizon.”).Show More

That hand-wringing aside, the tide is turning on the nondelegation doctrine. A recent dissent by Justice Gorsuch in Gundy v. United States served as a strong signal that the nondelegation doctrine may yet have life in it.14 14.See generally, Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting) (arguing that the Court should be less deferential to delegations of legislative power).Show More In his dissent, Justice Gorsuch argues that the “intelligible principle” test is without doctrinal or constitutional mooring and should be put to rest.15 15.Id. at 2138–40.Show More His dissent also articulates three “traditional tests” that, in his view, represent the true underpinnings of what the nondelegation doctrine ought to be employed to do.16 16.Id. at 2135–37, 2139.Show More With the momentum of an ideologically shifting Court behind him, his dissent sparked hand-wringing of a different sort—over the practical implications of waking the nondelegation doctrine after its nearly century-long slumber.17 17.Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”); see also Jonathan Hall, Note, The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation, 70 Duke L.J. 175, 179 (2020) (arguing that adoption of “the Gorsuch test” would have “destabilizing effects”); Ian Millhiser, Brett Kavanaugh’s Latest Opinion Should Terrify Democrats, Vox (Nov. 26, 2019), https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul [https://perma.cc/DAL6-Z3H4] (“[Justice] Gorsuch, in other words, would give the Republican-controlled Supreme Court a veto power over all federal regulations.”).Show More This Note addresses, among other things, those concerns.

To be sure, a single dissenting opinion ordinarily wouldn’t sound the death-knell of a doctrine that has been a staple of constitutional jurisprudence for nearly a century. Nonetheless, it is not difficult to count to five votes in support of Justice Gorsuch’s position in Gundy. Chief Justice Roberts and Justice Thomas both joined the dissent, obviously indicating that they endorse its reasoning.18 18.See Gundy, 139 S. Ct. at 2131–48 (Gorsuch, J., dissenting).Show More Justice Alito concurred in the judgment only.19 19.Id. at 2130–31 (Alito, J., concurring in the judgment).Show More But his vote to uphold the result in Gundy was driven by a desire not to “single out” the statute at issue in Gundy “for special treatment.”20 20.Id.Show More And if a majority of the Court were willing to engage in a wholesale revision of the nondelegation doctrine, Justice Alito “would support that effort.”21 21.Id.Show More Neither Justice Kavanaugh nor Justice Barrett participated in the Gundy decision, leaving their views less known. In the time since Gundy, however, Justice Kavanaugh has indicated that he agrees with Justice Gorsuch’s position.22 22.See Paul v. United States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J., respecting the denial of certiorari).Show More In a statement respecting the denial of certiorari in a companion case to Gundy, Justice Kavanaugh wrote that “Justice Gorsuch’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.”23 23.Id.Show More Thus, while Justice Gorsuch’s dissent was just that—a dissent—it seems likely that his opinion now carries the support of a majority of the current members on the Court.24 24.This Note does not—nor does it need to in light of the head-counting provided above—take a view on what Justice Barrett’s stance may be on this issue. Even assuming Justice Barrett disagrees with Justice Gorsuch, it seems as though there are now five votes to support his dissenting position.Show More That reality raises the stakes for what the opinion means for the administrative state, which is what this Note aims to address.

This Note analyzes the constitutional and pragmatic issues implicated by Justice Gorsuch’s opinion. Part I addresses the fundamental principle of separation of powers. That part provides a brief constitutional overview of how the delegation of legislative authority to non-legislative actors implicates that basic constitutional precept. Part II provides a brief overview of the Court’s decision and Justice Gorsuch’s dissent in Gundy. Part III explores the constitutional and doctrinal bases for the “traditional tests” Justice Gorsuch articulates in his Gundy dissent. That Part, by explaining the constitutional and precedential frameworks for those tests, defends the soundness of Justice Gorsuch’s premise. Part IV then applies the “traditional tests” to two specific statutes, which received nondelegation scrutiny beginning nearly a century ago, and continue to be scrutinized as recently as cases decided within the past year. In its application of the “traditional tests” to these constitutionally dubious statutes, this Note argues that Justice Gorsuch’s proposed “revolution” of nondelegation jurisprudence would not result in the sea-change that some have predicted. Rather, its analysis shows that the limits these “traditional tests” impose on delegation, while meaningful, are not impossible to satisfy. Indeed, the tests leave Congress ample flexibility to govern effectively without forsaking the boundaries imposed by the separation of powers. At bottom, it demonstrates, in contrast with the plurality’s fears articulated in Gundy, that Justice Gorsuch’s traditional nondelegation approach does not compel the alarmist conclusion that “most of Government is unconstitutional.”25 25.Gundy, 139 S. Ct. at 2130.Show More

  1. * University of Virginia School of Law, J.D. 2020. This paper has benefitted greatly from a host of folks, without whom it would not have been written in the first place, much less published. Specifically, thanks go to Ray Gans and Andrew Kintner for their helpful, encouraging, and thoughtful feedback from the earliest stages of putting pen to paper. Additionally, to the members of the Virginia Law Review for their thorough and insightful revisions throughout the editing process. All the credit is theirs—all the errors mine.
  2. See, e.g., J. Harvie Wilkinson III, Assessing the Administrative State, 32 J.L. & Pol. 239, 243 (2017) (describing the “American regulatory landscape” as a “diverse set of institutions . . . that, together, seem to sprawl over just about every facet of modern life”).
  3. See id. at 242–44 (describing the growth of the administrative state from the New Deal era to modern day).
  4. 52 U.S.C. § 30106 (Supp. II 2012) (Federal Election Commission).
  5. 42 U.S.C. § 901 (2012) (Social Security Administration).
  6. 21 U.S.C. § 393 (2012) (Food and Drug Administration).
  7. 47 U.S.C. § 151 (2012) (Federal Communications Commission).
  8. Indeed, Congress must legislate, the Executive must act pursuant to that legislation, and the courts must stay out of the way.
  9. This term is frequently used to refer to the administrative state. See e.g., Wilkinson, supra note 1, at 242 (referring to the administrative state as an “impersonal leviathan”); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Yale L.J. 266, 281 (2013) (“[W]e must appreciate the crucial role of the newly expanded federal administrative state—the leviathan—in providing legislative history to the Court.”); Jamison E. Colburn, “Democratic Experimentalism”: A Separation of Powers for Our Time?, 37 Suffolk U. L. Rev. 287, 287 (2004); Marek D. Steedman, Taming Leviathan, 52 Tulsa L. Rev. 621 (2017); David French, John Roberts Throws the Administrative State a Lifeline, Nat’l Rev. (June 26, 2019), https://www.nationalreview.com/2019/06/john-roberts-throws-the-administrative-state-a-lifeline/ [https://perma.cc/B4SX-4GZJ] (referring to the “federal administrative leviathan”).
  10. Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1240 (1994) (pointing out that it is “not . . . for lack of opportunity” that the Court “has not invalidated a congressional statute on nondelegation grounds since 1935”).
  11. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).
  12. Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935).
  13. See infra note 43 (collecting cases in which the Court applied the “intelligible principle” test).
  14. See, e.g., Keith E. Whittington & Jason Iuliano, The Myth of the Nondelegation Doctrine, 165 U. Pa. L. Rev. 379, 404 (2017) (arguing that there is not “much basis for thinking that there was ever a seriously confining nondelegation doctrine as part of the effective constitutional order”); Lawson, supra note 9, at 1237–41 (“Thus, the demise of the nondelegation doctrine . . . has encountered no serious real-world legal or political challenges, and none are on the horizon.”).
  15. See generally, Gundy v. United States, 139 S. Ct. 2116, 2131–48 (2019) (Gorsuch, J., dissenting) (arguing that the Court should be less deferential to delegations of legislative power).
  16. Id. at 2138–40.
  17. Id. at 2135–37, 2139.
  18. Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”); see also Jonathan Hall, Note, The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation, 70 Duke L.J. 175, 179 (2020) (arguing that adoption of “the Gorsuch test” would have “destabilizing effects”); Ian Millhiser, Brett Kavanaugh’s Latest Opinion Should Terrify Democrats, Vox (Nov. 26, 2019), https://www.vox.com/2019/11/26/20981758/brett-kavanaughs-terrify-democrats-supreme-court-gundy-paul [https://perma.cc/DAL6-Z3H4] (“[Justice] Gorsuch, in other words, would give the Republican-controlled Supreme Court a veto power over all federal regulations.”).
  19. See Gundy, 139 S. Ct. at 2131–48 (Gorsuch, J., dissenting).
  20. Id. at 2130–31 (Alito, J., concurring in the judgment).
  21. Id.
  22. Id.
  23. See Paul v. United States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J., respecting the denial of certiorari).
  24. Id.
  25. This Note does not—nor does it need to in light of the head-counting provided above—take a view on what Justice Barrett’s stance may be on this issue. Even assuming Justice Barrett disagrees with Justice Gorsuch, it seems as though there are now five votes to support his dissenting position.
  26. Gundy, 139 S. Ct. at 2130.
  27. Mistretta v. United States, 488 U.S. 361, 372 (1989).
  28. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825).
  29. Yakus v. United States, 321 U.S. 414, 425 (1944) (alteration in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)).
  30. See The Federalist No. 47, at 301 (James Madison) (stating that, if the Constitution failed to protect against a breakdown in the separation of powers, “no further arguments would be necessary to inspire a universal reprobation of the system”).
  31. Id.
  32. The Federalist No. 37, at 228 (James Madison).
  33. The Federalist No. 47, at 301 (James Madison).
  34. See The Federalist No. 51, at 321–22 (James Madison) (“But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. . . . Ambition must be made to counteract ambition.”).
  35. The Federalist No. 47, at 301 (James Madison); see also Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43 (1825) (holding that Congress may not constitutionally delegate legislative powers); Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 Cornell L. Rev. 1, 8 (1994) (“[T]he abdication of power and its corresponding responsibilities is as serious a problem as aggrandizement.”).
  36. U.S. Const. art. I, § 1 (emphasis added).
  37. Wayman, 23 U.S. at 42–43.
  38. Field v. Clark, 143 U.S. 649, 693–94 (1892) (quotation omitted).
  39. Id. at 694 (quotation omitted).
  40. Id. at 693–94 (quotation omitted).
  41. Wayman, 23 U.S. at 42–43.
  42. 276 U.S. 394 (1928).
  43. Id. at 409.
  44. See, e.g., Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 474 (2001) (“The scope of discretion § 109(b)(1) [of the Clean Air Act] allows is in fact well within the outer limits of our nondelegation precedents.”); Mistretta v. United States, 488 U.S. 361, 371–79 (1989) (holding that, “[a]lthough Congress ha[d] delegated significant discretion,” the Court had “no doubt” that the delegation in the sentencing guidelines to the Sentencing Commission was “sufficiently specific and detailed to meet constitutional requirements”); Loving v. United States, 517 U.S. 748, 751, 771–74 (1996) (finding “no fault” in the delegation to the President the authority to define aggravating factors that permit the death penalty in military capital cases); Touby v. United States, 500 U.S. 160, 162, 165–66 (1991) (discussing the intelligible-principle test and holding that “even if greater congressional specificity” were “required in the criminal context,” legislative delegation of authority to the Attorney General under § 201(h) of the Controlled Substances Act would still pass constitutional muster); Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 221 n.7 (1986) (rejecting the assertion that the discretionary authority granted by Multiemployer Pension Plan Amendments Act of 1980 did not constitute “a reasonable means of achieving congressional aims,” and that it provided an “intelligible principle” to guide the delegee); Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976) (stating that 19 U.S.C. § 1862(b), or Section 232 of the Trade Expansion Act, “easily fulfills” the intelligible-principle test); Lichter v. United States, 334 U.S. 742, 774–87 (1948) (applying the intelligible-principle test and concluding the purpose and background of the Renegotiation Act established a “sufficient meaning” for the phrase “excessive profits” so as to make the Act “a constitutional definition of administrative authority and not an unconstitutional delegation of legislative power”).
  45. Panama Refin. Co. v. Ryan, 293 U.S. 388, 431–33 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 541–42 (1935).
  46. 293 U.S. 388 (1935).
  47. 295 U.S. 495 (1935).
  48. See generally Schechter Poultry, 295 U.S. at 519–51 (failing, in its 32-page opinion, to invoke the phrase “intelligible principle”).
  49. See Panama Refin., 293 U.S. at 420–30 (providing the “intelligible principle” language from J.W. Hampton as just one of many examples in which “the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend”).
  50. See Gundy v. United States, 139 S. Ct. 2116, 2138–40 (2019) (Gorsuch, J., dissenting) (arguing that the “intelligible principle” phrase was used in J.W. Hampton as a way of “explain[ing] the operation of [other] traditional tests,” and describing it as a “passing comment” that has been “divorc[ed] . . . from its context,” and an “isolated phrase” that has been “treat[ed] . . . as if it were controlling”).
  51. See supra note 43.
  52. See Gundy, 139 S. Ct. at 2139–40 (Gorsuch, J., dissenting) (“This mutated version of the ‘intelligible principle’ remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked.”); id. at 2131 (Alito, J., concurring in the judgment) (“If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.”).
  53. See supra notes 18–21 and accompanying text.
  54. See supra notes 22–23 and accompanying text.
  55. Gundy, 139 S. Ct. at 2121–22 (plurality opinion).
  56. Id. at 2122.
  57. 34 U.S.C. § 20913(d) (2012).
  58. Gundy, 139 S. Ct. at 2132 (Gorsuch, J., dissenting) (“The breadth of the authority Congress granted to the Attorney General in these few words can only be described as vast.”).
  59. Id. (providing examples of how the “pendulum swung” on retroactive application of SORNA depending on who happened to be serving as Attorney General at the time); but see id. at 2122 (plurality opinion) (“The final rule, issued in December 2010, reiterated that SORNA applies to all pre-Act offenders. That rule has remained the same to this day.”) (citation omitted).
  60. Id. at 2123–24 (plurality opinion).
  61. Id. (emphasis added).
  62. Id. at 2125.
  63. See id. at 2129 (reframing the constitutional question as such: “The question becomes: Did Congress make an impermissible delegation when it instructed the Attorney General to apply SORNA’s registration requirements to pre-Act offenders as soon as feasible?”).
  64. Id.
  65. Id. at 2124.
  66. For the plurality’s proposition, see id. at 2129. For Justice Gorsuch’s disagreement, see id. at 2131–32 (Gorsuch, J., dissenting).
  67. Id. at 2131–32 (Gorsuch, J., dissenting) (quoting Wayne A. Logan, The Adam Walsh Act and the Failed Promise of Administrative Federalism, 78 Geo. Wash. L. Rev. 993, 1000 (2010)).
  68. Id. at 2132.
  69. This exposes what was really at issue in Gundy—it was a case that turned on statutory interpretation. See e.g., Aditya Bamzai, Commentary, Delegation and Interpretive Discretion: Gundy, Kisor, and the Formation and Future of Administrative Law, 133 Harv. L. Rev. 164, 166 (2019) (stating that Gundy “turned largely on the plurality’s narrowing construction of a statutory scheme”). The plurality was content to impose a limiting construction to avoid the delegation question, while Justice Gorsuch was willing to take on the broader issue. See also Gundy, 139 S. Ct. at 2145 (Gorsuch, J., dissenting) (“Most everyone, the plurality included, concedes that if SORNA allows the Attorney General as much authority as we have outlined, it would present ‘a nondelegation question.’” (quoting id. at 2123–24 (plurality opinion))).
  70. Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting).
  71. Id. at 2135–39.
  72. See id. at 2136–37 (citing both Wayman v. Southard, 23 U.S. (10 Wheat.) 31, 43 (1825) and The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 388 (1813) as articulating these standards). To be sure, it does not seem as though the third category comes explicitly from any one case. See id. at 2137. Nonetheless, Justice Gorsuch asserts that both Wayman and Aurora could have appropriately been decided on these grounds. Id. Further, it seems obvious that separation of powers concerns are not implicated when Congress gives another branch discretion over matters properly within the scope of that branch’s powers. See, e.g., David Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 Mich. L. Rev. 1223, 1260 (1985) (“Legislation that leaves the Executive Branch with discretion does not delegate legislative power where the discretion is to be exercised over matters already within the scope of executive power.”). In other words, nondelegation is implicated only when Congress abdicates its own constitutionally assigned power, not when it empowers another branch to act within that branch’s proper sphere.
  73. While the tests are interrelated, the satisfaction of any test is sufficient to insulate a statute from a nondelegation challenge. Which test applies depends on the unique circumstances presented by the delegation at issue in a particular case. See infra Part III.
  74. Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting) (quoting Wayman, 23 U.S. at 43).
  75. Id.
  76. Id. at 2137.
  77. See id. at 2137–38 (Gorsuch, J., dissenting).
  78. Id. at 2139 (“There’s a good argument, as well, that the statute in J. W. Hampton passed muster under the traditional tests.”).
  79. Id. at 2145 (“Nor would enforcing the Constitution’s demands spell doom for what some call the ‘administrative state.’ . . . Respecting the separation of powers forecloses no substantive outcomes.”).
  80. See supra note 17.
  81. Gundy, 139 S. Ct. at 2137–39 (Gorsuch, J., dissenting).
  82. Id. at 2130 (plurality opinion) (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”).
  83. Yakus v. United States, 321 U.S. 414, 425 (1944) (alterations in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)).
  84. See Bamzai, supra note 68, at 177 (describing Justice Gorsuch’s approach as “a set of formal rules to identify those cases that pose a nondelegation problem”).
  85. Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)).
  86. By this, Chief Justice Marshall meant areas that did not implicate “powers which are strictly and exclusively legislative.” Wayman, 23 U.S. at 42–43.
  87. Id. at 43. For another early example of the “fill up the details” test, see, e.g., Hannibal Bridge Co. v. United States, 221 U.S. 194, 205 (1911) (“All that the act did was to impose upon the Secretary the duty of attending to such details as were necessary in order to carry out the declared policy of the Government.”).
  88. Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (citing Wayman, 23 U.S. at 43)).
  89. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912) (citations omitted).
  90. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904).
  91. Id.
  92. Id.
  93. Id.
  94. Red “C” Oil Mfg. Co., 222 U.S. at 394.
  95. Buttfield, 192 U.S. at 496; see also St. Louis, Iron Mountain & S. Ry. Co. v. Taylor, 210 U.S. 281, 286–87 (1908) (holding that permitting the American Railway Association to set “the standard height of draw bars for freight cars,” which was binding on all railways engaged in interstate commerce, was not an unconstitutional delegation under Buttfield, presumably due to the fact that this was a detail that was constrained by the greater purpose, or primary standard, of the legislation—safety).
  96. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935) (“Accordingly, we look to the statute to see . . . whether Congress in authorizing ‘codes of fair competition’ has itself established the standards of legal obligation . . . or, by the failure to enact such standards, has attempted to transfer that function to others.”); Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (“Moreover, the Congress . . . may establish primary standards, devolving upon others the duty to carry out the declared legislative policy”) (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)).
  97. J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (citations omitted).
  98. See Buttfield, 192 U.S. at 496.
  99. See Wayman, 23 U.S. at 43.
  100. See J.W. Hampton, 276 U.S. at 406; Buttfield, 192 U.S. at 496. To be sure, Congress’s requirement to provide “defined limits” for the Executive cannot be a high bar and remain consistent with the Court’s precedent. For example, in the statute at issue in Buttfield, Congress provided that the Secretary of the Treasury was to consider “purity, quality, and fitness for consumption” in making its determination. Id. at 494. Further, that statute required the Secretary to appoint a seven-member board of tea “expert[s]” who were to “prepare and submit to [the Secretary] standard samples of tea” and provide recommendations for the “standards of purity, quality, and fitness for consumption” of imported teas. An Act To Prevent the Importation of Impure and Unwholesome Tea, 29 Stat. 604, 605 (1897). Conversely, it is argued here that Congress could not have constitutionally stated a purpose of improving the quality of tea, and then empowered the Secretary to ban all tea of inferior quality, with no exposition as to how the Secretary was to make that determination. While the constraints provided in the Act at issue in Buttfield were admittedly not severe, they nonetheless confined the authority of the Secretary to some extent.
  101. See Schechter Poultry, 295 U.S. at 530, 541–42 (stating that the relevant provision of the Act represents an unconstitutional delegation of authority in part because it “supplies no standards”).
  102. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912); Buttfield, 192 U.S. at 496; St. Louis, Iron Mountain & S. Ry. Co., 210 U.S. 281, 287 (1908).
  103. 11 U.S. (7 Cranch) 382 (1813). Many early cases employed the “conditional fact-finding” test. See, e.g., Miller v. Mayor of New York, 109 U.S. 385, 394 (1883) (“The efficiency of an act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the act shall take effect may be left to such agencies as it may designate.” (citing South Carolina v. Georgia, 93 U.S. 4, 13 (1876)); Field v. Clark, 143 U.S. 649, 694 (1892) (“The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.”) (quoting Locke’s Appeal, 72 Pa. 491, 498 (1873)).
  104. See Aurora, 11 U.S. at 386 (argument of Joseph R. Ingersoll) (stating that making the revival of a law contingent on the President’s proclamation is the equivalent of giving “that proclamation the force of law”); see also Union Bridge Co. v. United States, 204 U.S. 364, 378 (1907) (describing both the statute at issue and the Court’s analysis in Aurora).
  105. Aurora, 11 U.S. at 388.
  106. See Field v. Clark, 143 U.S. 649, 682–83 (1892) (describing the statute at issue in Aurora).
  107. 204 U.S. 364, 387 (1907); see also, J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 407 (1928) (“Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive.”); Panama Refin. Co. v. Ryan, 293 U.S. 388, 426 (1935) (“[A]uthorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed, have constantly been sustained.”); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 530 (1935) (“[T]he Constitution has never been regarded as denying to Congress the [ability to] . . . leav[e] to selected instrumentalities . . . the determination of facts to which the policy as declared by the legislature is to apply.”) (citing Panama Refin., 293 U.S. at 421).
  108. Union Bridge Co., 204 U.S. at 387.
  109. Id. at 366 (quoting An Act Making Appropriations for the Construction, Repair, and Preservation of Certain Public Works on Rivers and Harbors, and for Other Purposes, 30 Stat. 1121, 1153–54 (1899)).
  110. Id.
  111. Id. at 385.
  112. Id. at 386–88.
  113. See supra note 95 (citing to the Court’s discussion of conditional fact finding in both Schechter Poultry and Panama Refining).
  114. Panama Refin. Co. v. Ryan, 293 U.S. 388, 415 (1935).
  115. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538 (1935) (describing the three “findings” that the President was required to make under the Recovery Act in order to exercise his discretion: (1) find that the proposed trade or industrial code did not inequitably restrict admission to membership in industrial associations; (2) that the proposed code did not promote monopolies; and (3) that the proposed code would “tend to effectuate the policy of” the Act (quoting National Industrial Recovery Act, Pub. L. No. 73-67 § 3, 48 Stat. 195, 196 (1933)).
  116. Id.
  117. Id.
  118. Id. at 537–42.
  119. See, e.g., Union Bridge Co. v. United States, 204 U.S. 364, 386–88 (1907).
  120. See Panama Refin. Co. v. Ryan, 293 U.S. 388, 415 (1935).
  121. See Schechter Poultry, 295 U.S. at 538.
  122. For example, the statute at issue in Buttfield required only that the Secretary of Treasury act with the purpose of excluding the lowest quality of tea. While it could conceivably be argued that this finding of quality constituted a finding of fact, that is not how the Court approached the statute. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904) (finding the statute to simply provide the Secretary of the Treasury with the necessary standard to “effectuate the legislative policy declared in the statute”).
  123. Indeed, it is hard to imagine how Congress would condition an action upon the finding of fact if there were no declared policy. For example, in Union Bridge, what facts would have been relevant to the Secretary of War in determining which bridges must be removed or altered if the policy of promoting the free travel upon navigable waters was not clearly stated? See Union Bridge, 204 U.S. at 366.
  124. This conclusion is bolstered by the fact that the Court in Union Bridge also determined that Congress had previously laid down a “general rule” that the administrator was acting within. See id. at 386.
  125. Gundy v. United States, 139 S. Ct. 2116, 2137 (Gorsuch, J., dissenting).
  126. See id. (citing no direct authority for this proposition).
  127. See, e.g., Loving v. United States, 517 U.S. 748, 768 (1996) (“And it would be contrary to the respect owed the President as Commander in Chief to hold that he may not be given wide discretion and authority.”).
  128. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment) (“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”) .
  129. 299 U.S. 304, 319–20 (1936); see also Youngstown, 343 U.S. at 635–37 (Jackson, J., concurring in the judgment) (explaining that, when the President acts within an area of executive discretion and in accordance with an express or implied congressional authorization, “his authority is at its maximum” and such an act in accordance with a congressional delegation would be afforded “the widest latitude of judicial interpretation”).
  130. Curtiss-Wright, 299 U.S. at 319–22.
  131. See Schoenbrod, supra note 71, at 1260.
  132. Id. at 1260–61.
  133. Field v. Clark, 143 U.S. 649 (1892).
  134. Id. at 1262–63; Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting) (“Wayman itself might be explained by the same principle as applied to the judiciary: Even in the absence of any statute, courts have the power under Article III ‘to regulate their practice.’”) (citing Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825)).
  135. The statute at issue in this case was about a trade embargo against the British. See The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 382–83 (1813).
  136. Clark, 143 U.S. 649, 691 (1892).
  137. Wayman, 23 U.S. at 43 (1825). As Justice Gorsuch notes in his dissent, courts possess this power under Article III, regardless of statutory authorization. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting).
  138. See The Federalist No. 78, at 465 (Alexander Hamilton) (“The legislature . . . prescribes the rules by which the duties and rights of every citizen are to be regulated.”).
  139. Gundy, 139 S. Ct. at 2137 (Gorsuch, J., dissenting).
  140. See Schoenbrod, supra note 71, at 1260–61.
  141. Id. at 1260.
  142. Or, in other words, the point at which the “intelligible-principle” test got its legs. See supra note 43 (citing cases, beginning in 1948, when the Court began earnestly applying the “intelligible principle” test).
  143. Gundy, 139 S. Ct. at 2130 (“[I]f SORNA’s delegation is unconstitutional, then most of Government is unconstitutional.”).
  144. It bears mentioning that any selection of statutes would be an imperfect proxy for the administrative state as a whole (as would any individual field). The purpose of this Note is not to prove that every statute that delegates authority to an administrative agency would be upheld under the traditional tests. Rather, it is intended to show that even these broad delegations are likely constitutional under the traditional tests, indicating that much of the administrative state would fare similarly. While a statute-by-statute analysis might be productive, such an analysis is beyond the scope of this Note. Thus, the selected statutes are apt, if imperfect, vessels by which to gauge the impact of Justice Gorsuch’s dissent.
  145. Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 447 (5th Cir. 2020) (internal quotation marks and citation omitted), petition for cert. filed, (U.S. Dec. 28, 2020) (No. 20-850).
  146. Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335, 1344 (Ct. Int’l Trade 2019) (stating that Section 232 “invite[s] the President to regulate commerce by way of means reserved for Congress”).
  147. Id. at 1346–52 (Katzmann, J., concurring dubitante).
  148. 21 U.S.C. § 387a–1 et seq. (2018); Pub. L. No. 111-31, 123 Stat. 1776, 1784 (2009).
  149. 21 U.S.C. § 301, et seq. (2018); Pub. L. No. 75-717, 52 Stat. 1040 (1938); see Big Time Vapes, 963 F.3d at 438.
  150. Big Time Vapes, 963 F.3d at 440. An “e-liquid” is a liquid mixture that is used in electronic vaping products. The liquid is aerosolized by the vaping device and inhaled by the user. See id. at 439 n.11.
  151. Deeming Tobacco Products to Be Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed. Reg. 28,974, 28,974­–75 (May 10, 2016).
  152. Big Time Vapes, 963 F.3d at 438–440.
  153. Id. at 446.
  154. The plurality opinion, plus Justice Alito’s concurrence.
  155. Big Time Vapes, 963 F.3d. at 447.
  156. Id. (cleaned up).
  157. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125–26 (2000).
  158. 21 U.S.C. § 387 et seq. (2018).
  159. Id. § 387a(b).
  160. Id. (emphasis added).
  161. Id. § 387(20).
  162. Id. § 387d.
  163. Id. § 387e(b), (g).
  164. Id. § 387j(a)(1)–(2), (c)(1)(A).
  165. Id. § 387f(d), (a), 387c(a)(8)(B)(i).
  166. Id. § 321(rr)(1).
  167. Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed. Reg. 28,974, at 28,976 (May 10, 2016).
  168. Id.
  169. 21 U.S.C. § 387a(b) (2018).
  170. Id.
  171. Id.
  172. Appellants’ Principal Brief at 45, Big Time Vapes, Inc. v. FDA, 963 F.3d 436 (5th Cir. 2020) (No. 19-60921), 2020 WL 957184 (emphasis added), petition for cert. filed, (U.S. Dec. 18, 2020) (No. 20-850).
  173. Id. at 58.
  174. Gundy v. United States, 139 S. Ct. 2116, 2130 (2019).
  175. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).
  176. See, e.g., Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380, 394 (1912) (citations omitted).
  177. Buttfield v. Stranahan, 192 U.S. 470, 496 (1904).
  178. Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, § 3, 123 Stat. 1776, 1781–82 (2009). While not codified at 21 U.S.C. § 387 et seq., the Fifth Circuit in Big Time Vapes nonetheless relied on it to discern a congressional purpose. As the court put it, “Section 3 is part of the positive law that ran the gauntlet of bicameralism and presentment. That’s a far cry from ‘the sort of unenacted legislative history that often is neither truly legislative nor truly historical.’” Big Time Vapes, 963 F.3d at 444 n.24 (cleaned up) (quoting BNSF Ry. Co. v. Loos, 139 S. Ct. 893, 906 (2019) (Gorsuch, J., dissenting)). The distinction between statutory and legislative history is beyond the scope of this Note. Suffice it to say, when Congress enacts a statute by bicameralism and presentment, the entirety of that statute is fair game. See Loos, 139 S. Ct. at 906 (Gorsuch, J. dissenting) (describing statutory history as “the record of enacted changes Congress made to the relevant statutory text over time, the sort of textual evidence everyone agrees can sometimes shed light on meaning”).
  179. § 3(2), 123 Stat. at 1781.
  180. § 3(5)–(9), 123 Stat. at 1782.
  181. § 3(3), 123 Stat. at 1782.
  182. Buttfield, 192 U.S. at 496.
  183. Red “C” Oil Mfg. Co. v. Bd. of Agric. of N.C., 222 U.S. 380 (1912).
  184. Id. at 394.
  185. See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406 (1928) (stating that it is “frequently necessary to use officers of the Executive Branch, within defined limits”) (emphasis added). To be sure, Congress could express a clear purpose but provide no guidance on how the delegee was to achieve that purpose. Such a delegation, while it may contain a “sufficient primary standard” would almost certainly be an unconstitutional delegation of legislative authority. For example, suppose Congress passed a law to combat homelessness. In that hypothetical law, there are three sections: The first section creates a “Homelessness Commission”; the second section instructs the Homelessness Commission to “by the year 2024, reduce homelessness in America by 98%, by whatever means the Commission deems appropriate”; and the third section defines “homelessness.” The purpose here is exceptionally clear, and yet it is uncontroversial that providing no guidance as to how to achieve that purpose would be constitutionally problematic.
  186. Id. (emphasis added).
  187. Tariff Act of 1922, ch. 356, § 315, 42 Stat. 858, 941–43 (1922).
  188. See Hampton, Jr., & Co. v. United States, 14 Ct. Cust. App. 350, 361–67, T.D. 42030 (1927).
  189. It is illustrative because Justice Gorsuch stated that the statute at issue in J.W. Hampton likely “passed muster under the traditional tests.” Gundy v. United States, 139 S. Ct. 2116, 2139 (2019) (Gorsuch, J., dissenting).
  190. Hampton. Jr., & Co., 14 Ct. Cust. App. at 362.
  191. Id. at 361–63.
  192. Id. at 362.
  193. Id.
  194. Id at 361–62.
  195. Id. at 362.
  196. Id.
  197. Big Time Vapes, Inc. v. FDA 963 F.3d 436, 445 (5th Cir. 2020) (citing 21 U.S.C. § 321(rr)(1)), petition for cert. filed, (U.S. Dec. 18, 2020) (No. 20-850).
  198. 21 U.S.C. § 387a(b) (2018) (subjecting all cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco to TCA regulation).
  199. Id. § 387d(a).
  200. Id. § 387e(i)(1).
  201. Id. § 387j(a)–(c).
  202. Big Time Vapes, 963 F.3d at 446.
  203. 21 U.S.C. § 387a(b).
  204. 19 U.S.C. § 1862 (2018).
  205. 376 F. Supp. 3d 1335, 1337, 1345 (Ct. Int’l Trade 2019), cert. denied, 141 S. Ct. 133 (June 22, 2020) (No. 19-1117).
  206. Id. at 1346–47 (Katzmann, J., concurring dubitante) (“While acknowledging the binding force of [Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548 (1976)], with the benefit of the fullness of time and the clarifying understanding borne of recent actions, I have grave doubts.”).
  207. This statute has been the focus of much criticism for the breadth of discretion it confers on the President. See, e.g., Paul Bettencourt, Note, “Essentially Limitless”: Restraining Administrative Overreach Under Section 232, 17 Geo. J.L. Pub. Pol’y 711, 726–27 (2019) (analyzing Section 232 under a nondelegation framework, using the AIIS case as an example, but claiming that challenging the statute on a nondelegation basis would be “unlikely to succeed” unless “the Court revisits its jurisprudence”).
  208. 19 U.S.C. § 1862 (2018).
  209. Id. § 1862(b)(1)(A).
  210. Id. § 1862(b)(3)(A).
  211. Id.
  212. Id. § 1862(c)(1)(A).
  213. Id. § 1862(c)(1)(A)(ii).
  214. Id. § 1862(c)(1)(B), (c)(2).
  215. Id. § 1862(d).
  216. Id.
  217. Id. This is significant because it empowers the President to effectively conflate “economy” with “security.”
  218. Proclamation No. 9705, 83 Fed. Reg. 11,625, at 11,626 (Mar. 8, 2018).
  219. Proclamation No. 9704, 83 Fed. Reg. 11,619, at 11,620 (Mar. 8, 2018).
  220. Prior to the Trump administration, a President acted pursuant to Section 232 on six occasions, the last of which occurred in 1986. See Rachel F. Fefer et al., Cong. Rsch. Serv., Section 232 Investigations: Overview and Issues for Congress 4, App. B (2020). In contrast, under the Trump administration there were five investigations. Id. at app. B. Two of those investigations resulted in the imposition of tariffs, two are still in process, and one seemingly expired with no action due to a missed deadline. See id. at App. B. (providing a table of Section 232 investigations dating back to 1963); see also David Lawder, Trump Can No Longer Impose ‘Section 232’ Auto Tariffs After Missing Deadline: Experts, Reuters (Nov. 19, 2019), https://www.reuters.com/article/us-usa-trade-autos/trump-can-no-longer-impose-section-232-auto-tariffs-after-missing-deadline-experts-idUSKBN1XT0TK [https://perma.cc/D5QY-X7ZX] (stating that the statutory deadline for the Section 232 investigation being used to impose tariffs on foreign-made cars and auto parts passed with no action, forfeiting the administration’s opportunity to utilize such tariffs).
  221. See Fefer, supra note 219, at 7 (noting that in his Memo on proposed Section 232 tariffs, Secretary of Defense James Mattis, while agreeing that “imports of foreign steel and aluminum based on unfair trading practices impair the national security,” ultimately disagreed with the President’s broad-brushed imposition of tariffs in this instance, as “U.S. military requirements for steel and aluminum each only represent about three percent of U.S. production”) (quoting Letter from James N. Mattis, Secretary of Defense, to Wilbur L. Ross Jr., Secretary of Commerce (2018), https://www.commerce.gov/sites/default/files/depart‌ment_of_defense_memo_response_to_steel_and_aluminum_policy_recommendations.pdf [https://perma.cc/M2FB-U63M]; see also Editorial Board, The National Security Tariff Ruse, Wall St. J. (Mar. 12, 2018), https://www.wsj.com/articles/the-national-security-tariff-ruse-1520897310 [https://perma.cc/V9UP-VYCY] (describing the Trump administration’s use of Section 232 to justify tariffs as “dubious,” because “[n]ot even the Pentagon buys” the notion “that steel and aluminum imports make the U.S. military vulnerable”); John Brinkley, Trump’s National Security Tariffs Have Nothing To Do with National Security, Forbes (Mar. 12, 2018) https://www.forbes.com/sites/johnbrinkley/2018/03/12/trumps-national-security-tariffs-have-nothing-to-do-with-national-security/?sh=197f0c6e706c [https://perma.cc/WZE3-AYNP] (arguing that “[t]he national security argument [on behalf of the tariffs] is a sham and everyone knows it,” as “[n]ot even Defense Secretary James Mattis bought it”).
  222. See Brinkley, supra note 220 (“It’s obvious that [the President] used the national security argument as a pretense for something he wanted to do, but for which he had no other legal justification.”).
  223. See Fefer, supra note 219, at 12 (quoting Requirements for Submissions Requesting Exclusions from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into the United States and Adjusting Imports of Aluminum into the United States, 83 Fed. Reg. 12,106 (Mar. 19, 2018)).
  224. Andrea Shalal, U.S. Handling of Tariffs Raises Appearance of ‘Improper Influence’: Watchdog, Reuters (Oct. 30, 2019) (quotation omitted), https://www.reuters.com/article/us-usa-trade-steel/u-s-handling-of-tariffs-raises-appearance-of-improper-influence-watchdog-idUSKBN1X92KP?feedType=RSS&feedName=topNews [https://perma.cc/5XPA-33J6].
  225. Fefer, supra note 219, at 12–15; see also Shalal, supra note 223 (explaining that the Commerce Department’s inspector general found a lack of transparency surrounding the Trump Administration’s tariff policy).
  226. 426 U.S. 548, 558–60 (1976).
  227. Proclamation No. 4341, 40 Fed. Reg. 3965, 3966 (Jan. 27, 1975); see also Algonquin, 426 U.S. at 554–55 (observing that President Ford’s Proclamation targeted the importation of petroleum and derivative products on the basis of national security concerns).
  228. Algonquin SNG, Inc. v. Fed. Energy Admin., 518 F.2d 1051, 1062 (D.C. Cir. 1975) (“[W]e do not say that Congress cannot constitutionally delegate, accompanied by an intelligible standard, such authority to the President; we merely find that they have not done so by this statute. We reach no conclusion on any delegation issue raised by the parties.”).
  229. Id.
  230. Id.
  231. Algonquin, 426 U.S. at 570–71.
  232. Id. at 559.
  233. Id. at 558–60.
  234. Id. at 559.
  235. 19 U.S.C. § 1862(b) (2018) (preconditioning the President’s action on the determination of the Secretary of Commerce).
  236. Id. § 1862(a).
  237. Algonquin, 426 U.S. at 559.
  238. Id. (quoting 19 U.S.C. § 1862(b)).
  239. Id.
  240. See 19 U.S.C. § 1862(d) (providing, among other factors, that the President should, “without excluding other relevant factors” consider factors such as “unemployment,” “effects resulting from the displacement of any domestic products by excessive imports,” and “the investment, exploration, and development necessary to assure” growth of domestic industries pertinent to national security).
  241. See Algonquin, 426 U.S. at 559.
  242. 376 F. Supp. 3d 1335 (Ct. Int’l Trade 2019).
  243. Id. at 1344–45.
  244. Id. at 1345 (citation omitted).
  245. Not to be confused with Second Circuit Senior Judge Robert Katzmann.
  246. Am. Inst. for Int’l Steel, 376 F. Supp. at 1347 (Katzmann, J., concurring dubitante).
  247. Id. at 1346. Judge Katzmann previously concluded that the power at issue, imposing duties and tariffs, “is a core legislative function.” Id.
  248. Id. at 1351–52.
  249. Id. at 1352.
  250. Id.
  251. Certainly, those who would claim that Justice Gorsuch’s position makes “most of Government . . . unconstitutional” would seem to agree with this statement. See Gundy v. United States, 139 S. Ct. 2116, 2130 (2019) (plurality opinion).
  252. See Am. Inst. for Int’l. Steel, 376 F. Supp. 3d at 1344–45 (majority opinion) (concluding that although, among other concerns, Section 232 “bestow[s] flexibility on the President and seem[s] to invite the President to regulate commerce by way of means reserved for Congress, leaving very few tools beyond his reach,” “such concerns are beyond this court’s power to address, given the Supreme Court’s decision in Algonquin”); see also id. at 1352 (Katzmann, J., concurring dubitante) (“[I]t is difficult to escape the conclusion that [Section 232] has permitted the transfer of power to the President in violation of the separation of powers.”). The conclusion that Section 232 presents a nondelegation “close call” is not undercut by the cursory analysis provided by the Court in Algonquin. To be sure, the Court there stated that Section 232 “easily fulfills” the intelligible-principle test. Fed. Energy Admin. v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976). That statement notwithstanding, as stated above, the Court did not meaningfully analyze the delegation claim in Algonquin. See supra Subsection IV.B.ii.
  253. See supra Section III.B.
  254. Cf. Am. Inst. for Int’l. Steel, 376 F. Supp. 3d at 1352 (Katzmann, J., concurring dubitante) (providing brief recognition of “the flexibility that can be allowed the President in the conduct of foreign affairs”).
  255. Id. at 1346 (Katzmann, J., concurring dubitante).
  256. 19 U.S.C. § 1862(a) (2018).
  257. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
  258. See supra Section III.C.
  259. 19 U.S.C. § 1862(c)(1)(A). Indeed, the Court in Algonquin stated as much. Fed. Energy Admin v. Algonquin SNG, Inc., 426 U.S. 548, 559 (1976) (“[Section 232] establishes clear preconditions to Presidential action.”).
  260. Compare A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538 (1935) (holding that the conditions precedent to presidential action in the Recovery Act were more appropriately described as “a statement of an opinion as to the general effect” that the proposed regulations would have) with The Cargo of the Brig Aurora v. United States, 11 U.S. (7 Cranch) 382, 382–83, 388–89 (1813) (holding that delegating the authority to the President to reinstate a law based on the factual determination of Great Britain’s ceasing to violate the neutral commerce of the United States was constitutionally permissible).
  261. 19 U.S.C. § 1862(c)(1)(A).
  262. See, e.g., Aurora, 11 U.S. at 382, 387–89 (reviewing the statutory scheme that “ma[d]e the revival of an act depend upon a future event”); Union Bridge Co. v. United States, 204 U.S. 364, 366–67 (1907) (requiring a finding of “an unreasonable obstruction to the free navigation” of navigable waters).
  263. See supra note 114 (listing the precedent findings the President was required to make under the Recovery Act at issue in Schechter Poultry).
  264. 19 U.S.C. § 1862(d).
  265. Schechter Poultry, 295 U.S. at 538 (citations omitted).
  266. Id.
  267. See 19 U.S.C. § 1862(a), (b), (c).
  268. Schechter Poultry, 295 U.S. at 538.
  269. Meshal v. Higginbotham, 804 F.3d 417, 443 (D.C. Cir. 2015) (Pillard, J., dissenting).
  270. See, e.g., Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577–87 (2011) (providing an in-depth analysis of how to best define “national security”).
  271. Id. at 1580.
  272. 19 U.S.C. § 1862(a); see also, Bettencourt, supra note 206, at 715 (noting the “broad discretion” granted to the “executive branch’s interpretation of ‘national security’” under Section 232) (citation omitted).
  273. See Schoenbrod, supra note 71, at 1260.
  274. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936).
  275. See, e.g., Abraham D. Sofaer, Presidential Power and National Security, 37 Presidential Stud. Q. 101, 120 (2007) (“The Constitution allocates powers over national security to all the branches that enable each to affect national policy.”); Schoenbrod, supra note 71, at 1260–61 (describing the confluence of executive and legislative power in the “war and foreign affairs” context).
  276. Sofaer, supra note 274, at 120. For example, Congress holds the power to declare war, U.S. Const. art. I, § 8, while the President, as Commander in Chief, exercises simultaneous military and national security powers. U.S. Const. art. II, § 2.
  277. Gundy v. United States, 139 S. Ct. 2116, 2137 (2019) (Gorsuch, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring in the judgment) (“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence.”).
  278. To be sure, an analysis of executive powers is a topic of ongoing debate and is well beyond the scope of this Note. See, e.g., Sofaer, supra note 274, at 120–22 (explaining the debate over those powers which are exercised exclusively by the President and which powers are shared with other branches).
  279. Id. at 120.
  280. U.S. Const. art. I, § 8; see also Am. Inst. for Int’l Steel v. United States, 376 F. Supp. 3d 1335, 1346 (Ct. Int’l Trade 2019) (Katzmann, J., concurring dubitante) (“[T]he power to impose duties is a core legislative function.”).
  281. Schoenbrod, supra note 71, at 1260.
  282. This, clearly, does not require a finding that the administration’s actions under Section 232 discussed previously are permissible. Those actions remain subject to challenge on the grounds that the President has stepped beyond the bounds of Section 232 and is not acting in the interest of national security. That analysis encompasses an entirely different set of questions and is not addressed by this Note.
  283. Gundy v. United States, 139 S. Ct. 2116, 2145 (2019) (Gorsuch, J., dissenting).
  284. Id. at 2130 (plurality opinion).
  285. Yakus v. United States, 321 U.S. 414, 425 (1944) (alterations in original) (quoting Currin v. Wallace, 306 U.S. 1, 15 (1939)).

Lockstepping Through Stop-And-Frisk: A Call to Independently Assess Terry Under State Law

Fifty-two years ago, in Terry v. Ohio, the United States Supreme Court upheld stop-and-frisk under the Fourth Amendment. At that time, stop-and-frisk had provoked substantial disagreement at the state level—leading to divergent opinions and repeat litigation. But after Terry, the state courts became silent. Since 1968, every state court has lockstepped with Terry in interpreting its own constitutional provisions.

This presents a puzzle, since state courts are free to provide more expansive (or less expansive) rights protections in interpreting their own state constitutions. And in other contexts, they have not been shy in doing so. In roughly a quarter of the Supreme Court’s Fourth Amendment cases, state courts have read their state guarantees to exceed the U.S. Constitution’s protections.

Terry’s suspect pedigree further complicates the puzzle. Over the past few decades, stop-and-frisk has helped spark a breakdown in police-community relations. Multiple federal investigations have uncovered its connection to systemic racism. By many accounts, both the stop and the frisk have disproportionately targeted minorities. Terry has also led to nationwide unrest. A Terry stop precipitated the deaths of Eric Garner, Michael Brown, and Freddie Gray.

This Note proposes a change in perspective: that litigants challenge stop-and-frisk under state law. It also lays the groundwork for such challenges. It examines the history of stop-and-frisk at the state level before Terry. It analyzes the Terry litigation, relying especially on the NAACP’s briefing, which accurately predicted stop-and-frisk’s perverse potential. And it synthesizes this analysis into three arguments that should be raised against stop-and-frisk under state law.

Introduction

In November 2019, former New York City Mayor Michael Bloomberg launched his campaign for the presidency in unprecedented fashion—with an apology.1.Shane Goldmacher, Michael Bloomberg Pushed ‘Stop-and-Frisk’ Policing. Now He’s Apologizing, N.Y. Times (Feb. 19, 2020), https://www.nytimes.com/2019/11/17/­us/politics/michael-bloomberg-speech.html [https://perma.cc/3H8Y-M4QD] (“It is almost unheard-of for a former chief executive to renounce and apologize for a signature policy that helped define a political legacy.”).Show More Speaking at a predominantly Black evangelical church in Brooklyn, Bloomberg renounced the stop-and-frisk policing strategy that had served as a “pillar of his 12-year mayoralty.”2.Id.Show More “The fact is, far too many innocent people were being stopped while we tried to do that,” Bloomberg said, later adding, “I got something important really wrong.”3.Nick Timiraos, Michael Bloomberg Apologizes for ‘Stop-and-Frisk’ Policing, Wall St. J. (Nov. 17, 2019), https://www.wsj.com/articles/michael-bloomberg-apologizes-for-stop-and-frisk-policing-11574017238 [https://perma.cc/67ZL-4AZB].Show More

Despite his contrition, Bloomberg was unable to shake the stigma of the city’s stop-and-frisk policy. “It’s not whether he apologized or not,” argued Joe Biden.4.Roll Call, Candidates Attack Bloomberg’s Record on Stop-and-Frisk Policy, YouTube (Feb. 20, 2020), https://www.youtube.com/watch?v=4R1lhgBwCMs [https://perma.cc/8BQ7-E3KT].Show More “It’s the policy. The policy was abhorrent. And it was in fact a violation of every right people have.”5.Id.Show More Elizabeth Warren echoed these sentiments: “It targeted Black and brown men from the beginning . . . You need a different apology here, Mr. Mayor.”6.Id.Show More The denunciations only escalated after a 2015 video emerged in which Bloomberg expounded a racist methodology for targeting minority communities. “[W]e put all the cops in the minority neighborhoods,” he said.7.Bobby Allyn, ‘Throw Them Against the Wall and Frisk Them’: Bloomberg’s 2015 Race Talk Stirs Debate, NPR (Feb. 11, 2020), https://www.npr.org/2020/02/11/804795405/throw-them-against-the-wall-and-frisk-them-bloomberg-s-2015-race-talk-stirs-deba [https://perma.cc/DL3E-C4B3].Show More “Why’d we do it? Because that’s where all the crime is. And the way you should get the guns out of the kids’ hands is throw them against the wall and frisk them.”8.Id.Show More The soundbite went viral and Bloomberg’s candidacy floundered thereafter.

The repercussions of stop-and-frisk extend beyond Bloomberg’s mayoralty in New York City. In 2015, the Department of Justice released its Ferguson Report, investigating the practices that contributed to riots in the St. Louis suburb. Among the DOJ’s cause-and-effect findings was this: an unchecked “pattern of suspicionless, legally unsupportable stops.”9.U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, at 18 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments–/2015/‌03/04/ferguson_police_department_report.pdf [https://perma.cc/2MVL-RMH7].Show More The Ferguson Police Department “must fundamentally change the way it conducts stops and searches,” the DOJ concluded.10 10.Id. at 91.Show More Other jurisdictions have faced similar controversies. After 250,000 stops in 2009, the Philadelphia Police Department pledged to appoint an independent monitor and retrain officers as part of a settlement agreement with the ACLU.11 11.Michael D. White & Henry F. Fradella, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic 5 (2016).Show More The ACLU has been similarly assertive in critiquing the “troubling frequency” of stops in Newark, and it has identified “similar controversies” in Miami, Baltimore, Chicago, and Detroit.12 12.Id. at 5–6.Show More

Americans have heard a lot of stop-and-frisk-related apologies from their elected officials over the past decade.13 13.This is not to say that all are in unison. There is a sharp divide between those who support the practice and those who denounce it. All the better, this paper argues. Sharp divisions make the perfect battleground for state court decision making—allowing states to fill their role as laboratories of experimentation in contentious times.Show More But state court judges—many of whom are elected officials in their own right14 14.See, e.g., Brennan Ctr. for Just., Judicial Selection: Significant Figures (May 8, 2015), https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures [https://perma.cc/948W-VTAJ].Show More—have been conspicuously silent during this time in interpreting their state constitutions. How have they avoided this explosive controversy? In short, they have shielded themselves for decades behind federal precedent. In 1968, the United States Supreme Court constitutionalized stop-and-frisk under the Fourth Amendment in Terry v. Ohio.15 15.392 U.S. 1 (1968).Show More And ever since, state courts have interpreted search-and-seizure protections in their own constitutions in lockstep with Terry.

This Note demands a change. State courts are free to do what they wish, but they should not hide under the umbrella of federal precedent in construing the search-and-seizure guarantees found in their own constitutions. The Supreme Court and state courts alike recognize that “[i]t is an established principle of our federalist system that state constitutions may be a source of ‘individual liberties more expansive than those conferred by the Federal Constitution.’”16 16.State v.Novembrino, 519 A.2d 820, 849 (N.J. 1987) (quoting PruneyardShopping Center v. Robins, 447 U.S. 74, 81 (1980)).Show More Indeed, over the past few decades, state courts have adopted muscular interpretations of their state provisions to reject controversial criminal procedure decisions like California v. Hodari D.,17 17.499 U.S. 621 (1991) (holding that a Fourth Amendment “seizure” of a person only occurs upon application of physical force to the person or the person’s submission to an officer’s “show of authority”). For examples of state court decisions that independently assessed a Supreme Court decision interpreting the Fourth Amendment, seeLaKeith Faulkner & Christopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020).Show More Illinois v. Gates,18 18.462 U.S. 213 (1983) (replacing the previous two-part test to evaluate whether an informant’s tip constitutes probable cause with a “totality of the circumstances” balancing test).Show More and United States v. Leon.19 19.468 U.S. 897 (1984) (holding that the exclusionary rule, which renders evidence inadmissible when it is the product of an unreasonable search or seizure under the Fourth Amendment, does not apply when an officer reasonably relies on a warrant issued by a magistrate that is later found to be invalid).Show More As Mayor Bloomberg (and the millions of citizens subjected to stop-and-frisk) can attest to, Terry may be the most controversial of all. And it is time that it receives reassessment in America’s state court systems.

Part I of this Note examines the societal forces that shaped Terry and the state-level decision making that contributed to its enshrinement as Supreme Court precedent. Part II analyzes the Terry litigation, focusing on the problems Terry was designed to solve and the courts’ different methodologies. Part III argues that state courts play a crucial role as guardians of individual rights and, thus, should not lockstep with Supreme Court precedent. Relying upon this analysis, Part IV raises three arguments that could be marshalled against stop-and-frisk under state law. Finally, Part V offers this Note’s conclusion. Michael Bloomberg is on the record. The citizens of New York City, Philadelphia, and other American cities are too. It is time for state courts and state constitutions to have their turn. It is time to reassess stop-and-frisk under state law.

  1. * J.D., University of Virginia School of Law, 2021. I am grateful to Professor Anne Coughlin for her patience and guidance throughout this project. I am also indebted to Louis Capozzi, Justin Aimonetti, Olivia Roat, and the members of the Virginia Law Review for their thoughtful feedback. Thank you to my dear friends Josh Hanley, Drew Mackenzie, Janessa Mackenzie, Blake Page, Anna Cecile Pepper, and Avery Rasmussen for always believing in me. I will miss you next year. Finally, I am deeply blessed to have such a supportive family. John, Margaret, Marlise, Nala, Mom, and Dad, I love you.

    This Note was inspired by and is dedicated to my father, Jeffrey Sutton.

  2. Shane Goldmacher, Michael Bloomberg Pushed ‘Stop-and-Frisk’ Policing. Now He’s Apologizing, N.Y. Times (Feb. 19, 2020), https://www.nytimes.com/2019/11/17/­us/politics/michael-bloomberg-speech.html [https://perma.cc/3H8Y-M4QD] (“It is almost unheard-of for a former chief executive to renounce and apologize for a signature policy that helped define a political legacy.”).
  3. Id.
  4. Nick Timiraos, Michael Bloomberg Apologizes for ‘Stop-and-Frisk’ Policing, Wall St. J. (Nov. 17, 2019), https://www.wsj.com/articles/michael-bloomberg-apologizes-for-stop-and-frisk-policing-11574017238 [https://perma.cc/67ZL-4AZB].
  5. Roll Call, Candidates Attack Bloomberg’s Record on Stop-and-Frisk Policy, YouTube (Feb. 20, 2020), https://www.youtube.com/watch?v=4R1lhgBwCMs [https://perma.cc/8BQ7-E3KT].
  6. Id.
  7. Id.
  8. Bobby Allyn, ‘Throw Them Against the Wall and Frisk Them’: Bloomberg’s 2015 Race Talk Stirs Debate,
    NPR

    (Feb. 11, 2020), https://www.npr.org/2020/02/11/804795405/throw-them-against-the-wall-and-frisk-them-bloomberg-s-2015-race-talk-stirs-deba [https://perma.cc/DL3E-C4B3].

  9. Id.
  10. U.S. Dep’t of Just. C.R. Div., Investigation of the Ferguson Police Department, at 18 (Mar. 4, 2015), https://www.justice.gov/sites/default/files/opa/press-releases/attachments–/2015/‌03/04/ferguson_police_department_report.pdf [https://perma.cc/2MVL-RMH7].
  11. Id. at 91.
  12. Michael D. White & Henry F. Fradella, Stop and Frisk: The Use and Abuse of a Controversial Policing Tactic 5 (2016).
  13. Id. at 5–6.
  14. This is not to say that all are in unison. There is a sharp divide between those who support the practice and those who denounce it. All the better, this paper argues. Sharp divisions make the perfect battleground for state court decision making—allowing states to fill their role as laboratories of experimentation in contentious times.
  15. See, e.g., Brennan Ctr. for Just., Judicial Selection: Significant Figures (May 8, 2015), https://www.brennancenter.org/our-work/research-reports/judicial-selection-significant-figures [https://perma.cc/948W-VTAJ].
  16. 392 U.S. 1 (1968).
  17. State v. Novembrino, 519 A.2d 820, 849 (N.J. 1987) (quoting Pruneyard Shopping Center v. Robins, 447 U.S. 74, 81 (1980)).
  18. 499 U.S. 621 (1991) (holding that a Fourth Amendment “seizure” of a person only occurs upon application of physical force to the person or the person’s submission to an officer’s “show of authority”). For examples of state court decisions that independently assessed a Supreme Court decision interpreting the Fourth Amendment, see LaKeith Faulkner & Christopher R. Green, State-Constitutional Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020).
  19. 462 U.S. 213 (1983) (replacing the previous two-part test to evaluate whether an informant’s tip constitutes probable cause with a “totality of the circumstances” balancing test).
  20. 468 U.S. 897 (1984) (holding that the exclusionary rule, which renders evidence inadmissible when it is the product of an unreasonable search or seizure under the Fourth Amendment, does not apply when an officer reasonably relies on a warrant issued by a magistrate that is later found to be invalid).
  21. The Nat’l Advisory Comm’n on Civ. Disorders (The Kerner Comm’n), The Kerner Report 32 (Princeton University Press 2016) (1968).
  22. Risa Goluboff, Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s, at
    194, 267–68

    (2016).

  23. The Kerner Comm’n, supra note 20, at 37.
  24. See, e.g., Marcus Casey & Bradley Hardy, 50 Years After the Kerner Commission Report, the Nation is Still Grappling with Many of the Same Issues, Brookings (Sept. 25, 2018), https://www.brookings.edu/blog/up-front/2018/09/25/50-years-after-the-kerner-commission-report-the-nation-is-still-grappling-with-many-of-the-same-issues/ [https://perma.cc/R3UW-C9S5].
  25. Debra Livingston, Gang Loitering, the Court, and Some Realism About Police Patrol, 1999 Sup. Ct. Rev. 141, 178.
  26. Gisske v. Sanders, 98 P. 43, 44–45 (Cal. Ct. App. 1908).
  27. Id. at 45.
  28. Id. at 44.
  29. State v. Hatfield, 164 S.E. 518, 519 (W. Va. 1932).
  30. 54 P.2d 211, 214 (Okla. Crim. App. 1935).
  31. Hatfield, 164 S.E. at 519; Hargus, 54 P.2d at 213.
  32. White & Fradella, supra note 11, at 36.
  33. A few other cases addressed the stop-and-frisk practice during these decades. In State v. Gulczynski, 120 A. 88, 89 (Ct. Gen. Sess. 1922), a Delaware court held that an officer could stop and question a suspect without probable cause, as cited in John A. Ronayne, The Right to Investigate and New York’s “Stop and Frisk” Law, 33 Fordham L. Rev. 211, 215–16 (1964). See also People v. Henneman, 10 N.E.2d 649, 650–51 (Ill. 1937) (holding that police officers had a right to stop and question the plaintiff even though he was not committing any crime at the time of arrest, nor did the officers have reason to believe he had committed a crime); State v. Zupan, 283 P. 671, 675 (Wash. 1929) (holding that police officers were justified in stopping the plaintiff without probable cause to inquire about his business).
  34. Henry F. Fradella & Michael D. White, Reforming Stop-and-Frisk, 18 Criminology, Crim. Just., L. & Soc’y 45, 46–47 (2017) (citing Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev.

    315, 317 (1942)).

  35. Id. at 47.
  36. Goluboff, supra note 21, at 198 (citing Uniform Arrest Act § 2, in Interstate Comm’n on Crime, The Handbook on Interstate Crime Control 87 (4th prtg. 1942)).
  37. Uniform Arrest Act § 3, in Interstate Comm’n on Crime, The Handbook on Interstate Crime Control 87 (4th prtg. 1942).
  38. Warner, supra note 33, at 316–17.
  39. Id. at 317.
  40. Ronayne, supra note 32, at 215 (noting statutes enacted in California, Illinois, Missouri, and Wisconsin).
  41. Frank J. Remington, The Law Relating to “On the Street” Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General, 51 J. Crim. L. Criminology & Police Sci. 386, 387 n.4 (1960).
  42. Warner, supra note 33, at 320; Goluboff, supra note 21, at 199.
  43. Warner, supra note 33, at 320; Goluboff, supra note 21, at 199; see also Goluboff, supra note 21, at 198 (noting that a number of scholars argued that “[d]etention was shorter and thereby less liberty depriving or stigmatizing than arrest for vagrancy”).
  44. Remington, supra note 40, at 391.
  45. Warner, supra note 33, at 324.
  46. U.S. Dep’t of Just., Fed. Bureau of Investigation, 18.2 Uniform Crime Reports 75, 122 (1947).
  47. Id. at 124.
  48. U.S. Dep’t of Just., Fed. Bureau of Investigation, 27.2 Uniform Crime Reports 67, 113 (1956). These statistics probably failed to capture the full gravity of “reasonable suspicion” seizures nationwide. As Caleb Foote asked: “What proportion of the total number of arrests is made up of persons abruptly arrested, investigated for minutes or hours or days, and as abruptly released without booking?” Caleb Foote, The Fourth Amendment: Obstacle or Necessity in the Law of Arrest?, 51 J. Crim. L. Criminology & Police Sci. 402, 406 (1960).
  49. William O. Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 12 (1960).
  50. Id. at 13.
  51. White & Fradella, supra note 11, at 40.
  52. Id.
  53. Brief for the NAACP Legal Defense and Education Fund, Inc. as Amicus Curiae at 34, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67) [hereinafter Brief for the NAACP].
  54. So did the pages of law journals. The NAACP’s brief provides nearly two full pages of critiques of stop-and-frisk doctrine. Among those mentioned are Foote, supra note 47, at 406 (arguing for a “reassess[ment]” of “the role the police should play in our society” focused on “stricter compliance with the [F]ourth [A]mendment”); Theodore Souris, Stop and Frisk or Arrest and Search—The Use and Misuse of Euphemisms, 57 J. Crim. L. Criminology & Police Sci. 251, 262 (1966) (arguing that the country should look to other means of preventing crime “which do not require that we tamper with the most fundamental of our constitutional rights as citizens, our right to be free”); Comment, Police Power to Stop, Frisk, and Question Suspicious Persons, 65 Colum. L. Rev. 848, 866 (1965) (contending that “the Court must proceed to develop rules on the power to stop, frisk and question suspicious persons which, based on analysis, will properly protect the individual’s right to be free from unreasonable imposition by the police”). Brief for the NAACP, supra note 52, at 10–11.
  55. 293 P.2d 52, 53 (1956).
  56. Id. Few state court decisions comprehensively addressed the frisk power before People v. Rivera, 201 N.E.2d 32 (N.Y. 1964). In State v. Collins, 191 A.2d 253, 255 (1963) the Supreme Court of Connecticut was unable to squarely address the frisk power because “[n]othing found as a result of the frisking was offered in evidence.” But in dicta, the court adopted a reasonableness approach under the Fourth Amendment of the federal Constitution and Article I, Section 8 of the Connecticut Constitution. Id. And in People v. Jones, 176 Cal. App. 2d 265, 267 (1959), a California appeals court held that “[w]here reasonable under the circumstances, an officer may run his hands over a person’s clothing to protect himself from attack with a hidden weapon.”
  57. Martin, 293 P.2d at 54 (Carter, J., dissenting).
  58. Id.
  59. Id.
  60. Id.
  61. Harvey E. Henderson Jr., Note, Stop and Frisk in California, 18 Hastings L.J. 623, 625 (1967) (citing People v. Davis, 222 Cal. App. 2d 75, 78 (1963), People v. Hilliard, 221 Cal. App. 2d 719, 723 (1963), People v. Beverly, 200 Cal. App. 2d 119, 125 (1962), and People v. Porter, 196 Cal. App. 2d 684, 686 (1961)).
  62. 163 A.2d 244, 247 (Del. 1960).
  63. Id. at 249.
  64. 171 N.E.2d 5 (Ill. 1960).
  65. Id. at 7; see also Wayne R. LaFave & Frank J. Remington, Controlling the Police: The Judge’s Role in Making and Reviewing Law Enforcement Decisions, 63 Mich. L. Rev. 987, 1005–06 (1965) (noting that the decisions of a judge may vary based upon the nature of the crime. For example, what is reasonable in a narcotics case is different than what is reasonable in a gambling case).
  66. 364 U.S. 253 (1960).
  67. Id.; see also Remington, supra note 40, at 390–91.
  68. Goluboff, supra note 21, at 202.
  69. Evelle J. Younger, Stop and Frisk: “Say It Like It Is,” 58 J. Crim. L. Criminology & Police Sci. 293, 295 (1967).
  70. Goluboff, supra note 21, at 202 (quoting A. Fairfield Dana, ed., New York State Legislative Annual 67 (1964)).
  71. Ronayne, supra note 32, at 211–12.
  72. Goluboff, supra note 21, at 203. The law became effective on July 1, 1964. See Emanuel Perlmutter, New ‘Frisk’ Law Goes into Effect: Police Are Dubious About Curbs That Go with It, N.Y. Times, July 2, 1964, at 52, https://www.nytimes.com/1964/07/02/archives/new-frisk-law-goes-into-effect-police-are-dubious-about-curbs-that.html [https://perma.cc/ZSW8-HK5H]. Only two weeks later, the Harlem and Bedford-Stuyvesant Race Riots “got their impetus from the killing of a black youngster by a police officer.” Daniel J. Monti, Patterns of Conflict Preceding the 1964 Riots: Harlem and Bedford-Stuyvesant, 23 J. of Conflict Resol
    .

    41, 43–44 n.1 (1979).

  73. Perlmutter, supra note 71.
  74. Josh Segal, Note, “All of the Mysticism of Police Expertise”: Legalizing Stop-and-Frisk in New York, 1961–1968, 47 Harv. C.R.-C.L. L. Rev.
    573, 585

    (2012) (citing Nelson A. Rockefeller, Annual Message to the Legislature (Jan. 8, 1964) in Public Papers of Nelson A. Rockefeller: Fifty-Third Governor of the State of New York 17–18 (1964)).

  75. 367 U.S. 643 (1961) (holding that the Fourth Amendment prohibits prosecutors from using evidence obtained through an unconstitutional search or seizure in a state court).
  76. See, e.g., Richard H. Kuh, Reflections on New York’s “Stop-and-Frisk” Law and Its Claimed Unconstitutionality, 56 J. Crim. L. Criminology & Police Sci. 32, 36 (1965); Arlen Specter, Mapp v. Ohio: Pandora’s Problems for the Prosecutor, 111 U. Pa. L. Rev. 4, 42 (1962).
  77. Goluboff, supra note 21, at 203.
  78. Douglas Dales, Rockefeller Signs Bills Increasing Powers of Police; Bar and Civil Rights Groups Call ‘Stop-and-Frisk’ and ‘No-Knock’ Laws Illegal; Harassment is Feared; But Governor Says Judicial Safeguards Are Provided—Calls Bills Imperative, N.Y. Times, Mar. 4, 1964, https://www.nytimes.com/1964/03/04/archives/rockefeller-signs-bills-increasing-powers-of-police-bar-and-civil.html [https://perma.cc/F7YH-WPP2] [hereinafter Rockefeller Signs Bills].
  79. Id.
  80. And where did New York’s state courts look when they faced this constitutional question? They looked to other state courts. Among the decisions cited by the majority and dissent in People v. Rivera include those mentioned earlier: State v. Collins, 191 A.2d 253 (Conn. 1963); People v. Martin, 293 P.2d 52 (Cal. 1956); Hargus v. State, 54 P.2d 211 (Okla. Crim. App. 1935); State v. Hatfield, 164 S.E. 518 (W. Va. 1932); Gisske v. Sanders, 98 P. 43 (Cal. Ct. App. 1908). People v. Rivera, 201 N.E.2d 32, 35–37 (N.Y. 1964).
  81. People v. Rivera, 38 Misc. 2d. 586, 589 (N.Y. Misc. 1963).
  82. Id.
  83. Id.
  84. Rivera, 201 N.E.2d at 34.
  85. Id. at 35–36.
  86. Id. at 35.
  87. Id. at 36. Justice Traynor had used similar language in a 1962 article: “Such a minor interference with personal liberty would touch the right to privacy only to serve it well.” Roger J. Traynor, Mapp v. Ohio at Large in the Fifty States,
    1962

    Duke L.J. 319, 334. After fifty years of stop-and-frisk, one has to imagine the New York state courts would like another look at this constitutional assessment. As Judge Scheindlin lamented in Floyd v. City of New York, “[w]hile it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience.” 959 F. Supp. 2d 540, 557 (S.D.N.Y. 2013).

  88. Rivera, 201 N.E.2d at 37 (Fuld, J., dissenting).
  89. Id. at 38 (citing Douglas, supra note 48, at 12, 13).
  90. Id. at 39.
  91. Id. The ACLU cited Justice Fuld’s “stirring language” as a conclusion to its amicus brief in Terry: “The loss of liberty entailed in authorizing a species of search on the basis of mere suspicion is too high a price to pay for the small measure of added security it promises.” Brief of ACLU, et al. as Amici Curiae, at 33, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67).
  92. Rivera, 201 N.E.2d.
  93. Right to Frisk Gets Supreme Court OK, Cleveland Press, June 10, 1968, at A1, A12, available at https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?‌article=1003&‌con‌text‌‌=‌terryvohio_newspaper [https://perma.cc/LG2Y-VAX7].
  94. Id. at A12.
  95. State v. Chilton, 95 Ohio L. Abs. 321, 325 (1964).
  96. Bus Bergen, Illegal Search is Charged at Concealed Weapons Trial, Cleveland Press, Sept. 22, 1964, available at https://engagedscholarship.csuohio.edu/cgi/viewcontent–.cgi?article=1005&context=terryvohio_newspaper [https://perma.cc/Z5SW-XYT3].
  97. Id.; Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist View, 74 Miss. L.J. 423, 431 (2004). Accounts dispute the number of times the suspects “repeated this ritual.” Terry v. Ohio, 392 U.S. 1, 6 (1968). The United States Supreme Court believed that “roughly a dozen trips” were taken. Id. But the Court of Appeals of Ohio claimed the suspects walked past the store “two to five times by both men.” State v. Terry, 214 N.E.2d 114, 116 (Ohio Ct. App. 1966). It turns out Officer McFadden’s memory was particularly fuzzy on this point. In his police report from the day of the incident, he claimed they looked into the store “about three times each.” Katz, supra, at 431. Later, at a suppression hearing, he upped the ante to “four or five times apiece” and eventually to “four to six trips each.” Id. Finally, at trial, he confessed “maybe four to five trips, maybe a little more, it might be a little less. I don’t know, I didn’t count the trips.” Id. For some, this pointed to a potential problem with the reasonable suspicion standard. Ambiguous evidence like the number of times a suspect walked by a store or their “mumbled response” to a question could foster suspicion when all an officer had to go on was “they didn’t look right to me.” Id. at 430, 434. Tellingly, these nuances were largely lost on the trial court judge, who noted, “There is no question about the facts in this case.” Chilton, 95 Ohio L. Abs. at 322.
  98. Terry, 392 U.S. at 6.
  99. Id. at 6–7.
  100. Id.
  101. Id.
  102. Id. at 7.
  103. Id. This is a familiar story, so for the sake of brevity I have omitted many of the details. For a more comprehensive account, see, for example, id. at 5–8; Stephen A. Saltzburg, Terry v. Ohio: A Practically Perfect Doctrine, 72 St. John’s L. Rev. 911, 912–14 (1998); Katz, supra note 96, at 430–34.
  104. See Saltzburg, supra note 102, at 914–15.
  105. State v. Chilton, 95 Ohio L. Abs. 321, 322 (1964).
  106. Id. at 323. Indeed, Judge Friedman cited both People v. Rivera and People v. Martin in his opinion, demonstrating that the laboratories of democracy were aware of each other’s precedent. Id. at 324.
  107. Id. at 322.
  108. Id. at 323.
  109. The name of the defendant changed because Richard Chilton was killed in a drug store holdup in Columbus in June 1867. James T. Cox, Bullets Write Finish to Chilton Case, Cleveland Plain Dealer, June 18, 1967, available at https://engagedscholarship.‌csuohio.edu/cgi/viewcontent.cgi?article=1015&context=terryvohio_newspaper [https://perma.cc/C343-P2YJ].
  110. Brian Albrecht, Hough Riot, 50 Years Ago, Couldn’t Destroy a Neighborhood, Cleveland.com (July 24, 2016), https://www.cleveland.com/metro/2016/07/hough_riot_–50_years_ago_couldn.html [https://perma.cc/Z9ZN-ZCZ9].
  111. Marc E. Lackritz, The Hough Riots of 1966, 1, 8 (Apr. 10, 1968) (B.A. thesis, Princeton Univ.).
  112. Id. at 9. Another policeman described the riots as “like the part in an old western where you’re caught in crossfire in a box canyon.” Id. at 8.
  113. State v. Terry, 214 N.E.2d 114, 117 (Ohio Ct. App. 1966). The citations included Gisske, Faginkrantz, Rivera, and Martin. Id.
  114. Id. at 118 (looking to various other state tribunals because “[t]he courts of Ohio do not appear to have been squarely presented with this problem before”).
  115. Id. The NAACP took particular exception to this phrase in its amicus brief. Over the course of five pages, the Association explained how even the most discrete of police encounters—a “hey, there”—might be interpreted as a threat by “the man in the ghetto.” Brief for the NAACP, supra note 52, at 35. Compounding the injustice was the fact that these stops would occur “day in day out, and for the same reasons.” Id.
  116. Terry, 214 N.E.2d at 120.
  117. Id. at 120. See also Saltzburg, supra note 102, at 916 (“The court was careful to distinguish a frisk for dangerous weapons from a ‘search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest.”).
  118. Goluboff, supra note 21, at 200.
  119. Id.; see, e.g., Mapp v. Ohio, 367 U.S. 643, 655 (1961) (applying the exclusionary rule against the states); Gideon v. Wainwright, 372 U.S. 335, 339–40 (1963) (mandating the appointment of counsel under the Sixth Amendment in all state court prosecutions); Escobedo v. Illinois, 378 U.S. 478, 479, 484 (1964) (holding that Illinois denied a suspect in custody the assistance of counsel in violation of the Sixth Amendment); Miranda v. Arizona, 384 U.S. 436, 479 (1966) (holding that a defendant “must be warned prior to any questioning that he has the right to remain silent . . . .”).
  120. Earl Warren, The Memoirs of Chief Justice Earl Warren 316 (Madison Books 2001) (1977); see also Michal R.

    Belknap, The Supreme Court under Earl Warren, 1953–1969, at 218 (2005) (detailing the Warren court’s creation of new constitutional rules of criminal procedure applicable to the states); Paul Moke, Earl Warren and the Struggle for Justice 209–11 (2015).

  121. Jack H. Pollack, Earl Warren: The Judge Who Changed America 267–68 (1979); see also Leo Katcher, Earl Warren: A Political Biography 440 (1967) (noting Chief Justice Warren’s concern about abusive police practices).
  122. Goluboff, supra note 21, at 201 (citing 2 Albert J. Reiss, Studies of Crime and Law Enforcement in Major Metropolitan Areas 112 (1967)).
  123. Goluboff, supra note 21, at 205. McFadden had thirty-nine years of experience at the time of the arrest.
  124. Brief for the ACLU, supra note 90, at 31 (citing McDonald v. United States, 335 U.S. 451, 456 (1948)).
  125. Id. at 31–32.
  126. Brief for the NAACP, supra note 52, at 24.
  127. Id. at 21. Demonstrating its complete distrust of the local officer, the NAACP drew a clear line: “Concerning both the occasions and extent of police intrusion upon the individual, ‘nothing is left to the discretion of the officer.’” Id. (citing Berger v. New York, 388 U.S. 41, 58 (1967)). Part IV addresses the NAACP’s analytical approach to the Fourth Amendment and probable cause in more detail.
  128. Brief for the NAACP, supra note 52, at 22–24. In fact, the NAACP already had evidence of the malleability of the stop-and-frisk framework. Simultaneously, litigation was ongoing regarding whether the police could seize contraband from a suspect “wholly within” an officer’s control, whether a policeman could reach into a suspect’s pocket to grab evidence without first frisking the defendant, and whether a frisk could “encompass the search of an automobile in which the ‘stopped’ suspect is riding.” Id. at 49–50.
  129. Id. at 51, 58.
  130. Id. at 62. The NAACP tried to convey to the Justices how stop-and-frisk played out in practice, citing to specific police manuals and instructions. See, e.g., id. at 45–46. One such manual encouraged officers to: “Be suspicious. This is a healthy police attitude . . . .” Id. at 45. Another provided a list of individual qualities that might justify field interrogation, like “known trouble-makers” or “unescorted women or young girls in public places.” Id. at 46. In case the list was not exhaustive enough, number twenty conferred complete discretion: “Many others. How about your own personal experiences?” Id. Goluboff, supra note 21, at 207 called my attention to this part of the brief.
  131. Brief for the NAACP, supra note 52, at 62. (As the New York Times noted: “[T]he script was familiar. Some minor incident begins it all, often the arrest of a Negro by a policeman.”). Americans outside the ambit of the Court’s briefing also understood the stakes. The Cleveland Plain Dealer would note after oral arguments that the case was heard “against a background of day-by-day stop-and-frisk actions by police that are increasingly resented by Negroes and others in the big-city ghettos.” Sanford Watzman, High Court Sifts Street Search Arguments, Cleveland Plain Dealer 5 (1967), available at https://engagedscholarship.csuohio.edu–/cgi/viewcontent.cgi?article=1004&context=terryvohio_newspaper [https://perma.cc/Y97X-YC6E].
  132. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
  133. Earl C. Dudley, Terry v. Ohio, the Warren Court, and the Fourth Amendment: A Law Clerk’s Perspective,
    72

    St. John’s L. Rev. 891, 892 (1998).

  134. Id. Title II of the Omnibus Crime Control and Safe Streets Act, which included provisions designed to overturn Miranda, was also passed in 1968. Belknap
    ,

    supra note 119, at 255.

  135. In 1967, the year before Terry was decided, “one out of eight policemen across the country was assaulted.” Goluboff, supra note 21, at 268.
  136. Dudley, supra note 132, at 892.
  137. Katz, supra note 96, at 440 n.88 (citing Francis A. Allen, The Judicial Quest for Penal Justice: The Warren Court and the Criminal Cases, 1975 U. Ill. L.F. 518, 538).
  138. Belknap
    ,

    supra note 119, at 256.

  139. McCray v. Illinois, 386 U.S. 300, 300 (1967).
  140. Id. at 304.
  141. Warden v. Hayden, 387 U.S. 294, 294, 307–08 (1967).
  142. Goluboff, supra note 21, at 206. Between 1960 and 1965, the national violent crime rate jumped 24.4%. Katz, supra note 96, at 435 n.79. Then, from 1965 to 1970, it spiked 81.6%. Id. This was precisely what the government felt that field interrogations were designed to solve.
  143. Brief for the State of Ohio at 40, Terry v. Ohio, 392 U.S. 1 (1968) (No. 67).
  144. Id. at 15.
  145. Id. at 41.
  146. Id.
  147. Id.
  148. Dudley, supra note 132, at 893.
  149. Goluboff, supra note 21, at 210. Around this time, the Court expressed a similar concern about unbounded police discretion in the context of the vagueness doctrine. See Joel S. Johnson, Vagueness Attacks on Searches and Seizures, 107 Va. L. Rev. 347, 356 (2021) (observing that the Court invalidated an ordinance prohibiting loitering in Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) “because of the excessive authority it granted to police” and “enabled them to make their own decisions about when loitering would and would not be allowed”).
  150. Id.
  151. Terry v. Ohio, 392 U.S. 1, 8–9 (1968).
  152. David A. Harris, Addressing Racial Profiling in the States: A Case Study of the “New Federalism” in Constitutional Criminal Procedure, 3 U. Pa. J. Const. L. 367, 373–74 (2001).
  153. Terry, 392 U.S. at 17. Dudley recalls that Chief Justice Warren was also skeptical of the “scope of the authority claimed by the police.” The power to “detain” on suspicion seemed “susceptible of major abuse” given the Kerner Commission’s reports about “aggressive patrol” tactics and the “political tensions” that “ran high” during the Cold War. Dudley, supra note 132, at 893.
  154. Terry, 392 U.S. at 10.
  155. Id.
  156. Id. at 22.
  157. Id. at 23. As Dean Goluboff notes, “[c]ertainly, the guns McFadden found on Terry and Chilton illustrated the need for the police to have authority to protect their own lives.” Goluboff, supra note 21, at 209–10.
  158. Dudley, supra note 132, at 895; see also Saltzburg, supra note 102, at 922 (“This analysis virtually ignored the potential ‘stop’ aspect of the case . . . . Were they free to leave? Was this a seizure? The Court neither asked nor answered these questions.”).
  159. Terry, 392 U.S. at 26. In other words, the officer had to limit the scope of his search to a protective “pat-down” “reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Id. at 29–30. He could not conduct a full-on search incident to arrest for contraband or evidence relevant to the crime. Moreover, the officer could not “place his hands in their pockets or under the outer surface of their garments until he had felt weapons.” Id.
  160. Terry, 392 U.S. at 28.
  161. Id. at 33 (Harlan, J., concurring); Dudley, supra note 132, at 895.
  162. Terry, 392 U.S. at 32 (Harlan, J., concurring).
  163. Id.
  164. Id. at 33–34.
  165. But see Katz, supra note 96, at 457 n.144. Harlan’s assessment that the right to frisk flowed automatically from the stop has not been adopted by courts. The two remain separate inquiries.
  166. Terry, 392 U.S. at 38 (Douglas, J., dissenting).
  167. Id. at 37, 38.
  168. Id. at 39. In Terry, the Chief Justice cited statistics demonstrating the assaults, injuries, and deaths that policemen had incurred over the past decade. Terry, 392 U.S. at 24 n.21. These were the same type of statistics cited by the law enforcement associations in their briefs.
  169. Id. at 39.
  170. Id.
  171. Dudley, supra note 132, at 893.
  172. While the state courts agreed with the Justices’ evaluation of the frisk, none of them had uncoupled the frisk and the stop like the Chief Justice.
  173. E.J. Kissell, Court Ruling is Gratifying to Detective in Frisk Case, Cleveland Press (June 11, 1968), https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1002&–context=terryvohio_newspaper [https://perma.cc/84MB-XPYU].
  174. Brown v. Allen, 344 U.S. 443, 540. (1953) (Jackson, J., concurring).
  175. U.S. Const., art. III, § 1.
  176. This section draws generally on insights from Jeffrey Sutton, 51 Imperfect Solutions (2018).
  177. Justice Kavanaugh offered this reminder to litigants in a recent Establishment Clause blockbuster, American Legion v. American Humanist Association, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring). Even though the individuals challenging the Bladensburg cross had lost at the federal level, Justice Kavanaugh reminded them that they still could appeal to their state constitution. Maryland courts were free to provide more expansive protections for religious liberty under their founding document. The Supreme Court “is not the only guardian of individual rights in America.” Id. (citing Sutton, supra note 175). Both sides of the Court are in agreement on this point. In Robinette v. Ohio, 519 U.S. 33, 42 (1996) (Ginsburg, J., concurring), a Fourth Amendment case, Justice Ginsburg agreed that “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards.” (citing Oregon v. Hass, 420 U.S. 714, 719 (1975)).
  178. Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447, 455 (1990).
  179. Id. at 455.
  180. The Michigan Supreme Court reminded litigants that the “appropriate analysis of our constitution does not begin from the conclusive premise of a federal floor.” Sitz v. Dep’t of State Police, 506 N.W.2d 209, 217 (Mich. 1993).
  181. Id. at 225.
  182. Id. at 223–24.
  183. The Federalist No. 51 at 339 (James Madison); see also William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev.
    489

    , 504 (1977) (“[W]e may be confident that [Madison] would welcome the broadening by state courts of the reach of state constitutional counterparts beyond the federal model . . . .”).

  184. The Federalist No. 51 at 339 (James Madison); see also The Federalist No. 10 at 61 (James Madison) (“The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.”).
  185. Stephen Kanter, Sleeping Beauty Wide Awake: State Constitutions as Important Independent Sources of Individual Rights 15 Lewis & Clark L. Rev. 799, 801–02 (2011). (quoting James Wilson, Of Government, in The Works of the Honorable James Wilson, L.L.D. 383, 398 (1804)).
  186. The Federalist No. 46 at 305 (James Madison).
  187. Id. at 307.
  188. Id. Professor Micah Schwartzman deserves credit for many of the insights in this paragraph. The organization of the virtues of federalism section into the categories of individual choice, competition, experimentation, prevention against tyranny, and protection of liberty stems from one of his class lectures.
  189. The Federalist No. 51 at 337 (James Madison).
  190. The Federalist No 46 at 305 (James Madison).
  191. For instance, one can imagine a jurisdiction that strikes down stop-and-frisk under its state constitution proving particularly appealing for minorities who have been the subject of profiling or allies who hope to live in a jurisdiction that embraces their concern for social justice. Independent interpretation of state constitutions also is neutral, as it applies equally to liberty and property rights, individual rights, and structural rights.
  192. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
  193. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev.
    489

    , 503 (1977).

  194. Id. at 495, 503.
  195. Robert Williams, The Law of American State Constitutions 137 (2009); Goodwin Liu, State Constitutions and the Protections of Individuals Rights: A Reappraisal, 2018 Forum for State Appellate Court Judges, Pound Civil Justice Institute 51 (2019), http://www.poundinstitute.org/wp-content/uploads/2019/04/2018_forum-report_2.26.19.pdf [https://perma.cc/T2QY-AHVR]; see also, State v. Hempele, 576 A.2d 793, 800 (N.J. 1990) (“Cognizant of the diversity of laws, customs, and mores within its jurisdiction, the United States Supreme Court is necessarily ‘hesitant to impose on a national level far-reaching constitutional rules binding on each and every state.’” (citing State v. Hunt, 450 A.2d 952, 962 (N.J. 1982) (Pashman, J., concurring))).
  196. Furthermore, as Justice Brandeis warned, “[d]enial of the right to experiment may be fraught with serious consequences to the Nation.” New State Ice Co., 285 U.S. at 311. Indeed, one of the benefits of state experimentation is that it would serve as an essential check against tyranny and a separate source of liberty for the people. State courts can prevent tyranny by serving as an intermediary against federal overreach—a separate forum for Americans to air their grievances. And they can protect liberty by enforcing separate state legal regimes to protect Americans from laws passed in excess of governmental power. For a cautionary story of how state courts have served this role, see Sutton, supra note 175, at 84–132 (describing how state courts initially voided a number of early eugenics laws as unconstitutional, before ceding the field to the Supreme Court’s interpretation of the Due Process and Equal Protection Clauses of the federal Constitution in Buck v. Bell, 274 U.S. 200 (1927)).
  197. In the words of Jacob Landynski, the Fourth Amendment has “both the virtue of brevity and the vice of ambiguity.” Tracey Maclin, The Central Meaning of the Fourth Amendment 35 Wm. & Mary L. Rev. 197, 247 (1993) (quoting Jacob W. Landynski, Search and Seizure and the Supreme Court 42 (1966)).
  198. Compare Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 759 (1994) (“We need to read the Amendment’s words and take them seriously: they do not require warrants, probable cause, or exclusion of evidence, but they do require that all searches and seizures be reasonable.”); Telford Taylor, Two Studies in Constitutional Interpretation 91–92 (1969) (critiquing the Court for “treat[ing] warrantless searches as disreputable second cousins” while recognizing that “I am swimming against the current of opinion.”); Richard Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct. Rev. 49, 75 (“Probable cause, a phrase from the second clause of the Fourth Amendment, is a limitation on the issuance of warrants; it is not part of the definition of reasonableness”), with Maclin, supra note 196, at 202 (“At a minimum, the Fourth Amendment commands compelling reasons, or at least a substantial justification, before a warrantless search or seizure is declared reasonable.”); United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J., dissenting) (“When the Fourth Amendment outlawed ‘unreasonable searches’ and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is ‘unreasonable’ unless a warrant authorizes it, barring only exceptions justified by absolute necessity.”); Harris v. United States, 331 U.S. 145 (1947) (Jackson, J., dissenting) (“[N]o search of premises, as such, is reasonable except the cause for it be approved and the limits of it fixed and the scope of it particularly defined by a disinterested magistrate.”).
  199. Which may not always be a given, although state protections do closely mirror the Fourth Amendment.
  200. In the context of the right to counsel, for instance, states that provided broader protections than the United States Supreme Court cited historical evidence from their state ratifying conventions to justify their interpretation. See Louis J. Capozzi III, Sixth Amendment Federalism, 43 Harv. J.L. & Pub. Pol’y 645, 684 (2020) (observing that the Iowa Supreme Court studied the debates surrounding the state’s right-to-counsel provision to “justify the court’s holding that the state constitution guaranteed the right to counsel to all defendants charged with a jailable offense”). Originalist judges should do the same with respect to their state search and seizure provisions.
  201. People v. Sundling, 395 N.W.2d 308 (Mich. Ct. App. 1986). Many of the state cases I cite in the next few pages were found in: Faulkner & Green, supra note 17.
  202. State v. Quino, 840 P.2d 358, 362 (Haw. 1992).
  203. Id. at 365 (Levinson, J., concurring).
  204. Id.
  205. See, e.g., State v. Guzman, 842 P.2d 660, 671 (Idaho 1992) (rejecting Leon’s deterrence rationale for the exclusionary rule. Under state law “this Court has held that the exclusionary rule does more than merely deter police misconduct.” It is also “a constitutionally mandated remedy for illegal searches and seizures.”); State v. Oquendo, 223 Conn. 635, 651 (Conn. 1992) (“We are persuaded that the distinction made by the United States Supreme Court between an arrest and an attempted arrest at common law does not guide our determination of what constitutes a seizure under . . . our state constitution.”); In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (“[W]e reject [Hodari] because . . . we are not persuaded by the arguments favoring the Hodari approach, and . . . we are persuaded that there is no need to depart from the pre-Hodari approach.”); Commonwealth v. Upton, 394 Mass. 363, 373 (1985) (stating that the Gates totality-of-the-circumstances test “is flexible, but [it] is also ‘unacceptably shapeless and permissive.’ The Federal test lacks the precision that we believe can and should be articulated in stating a test for determining probable cause.” (citation omitted)); State v. Jones, 706 P.2d 317, 324 (Alaska 1985) (“After carefully reviewing the majority’s reasoning in Gates, we conclude [it] does not provide the constitutional protection against unreasonable searches and seizures required by [the Alaska constitution].”).
  206. State courts, after all, can weigh geographic and demographic considerations unique to their jurisdictions. Crime rates and police practices vary between cities and states. For a thoughtful study of this factor in the context of the right to appointed counsel, see Capozzi III, supra note 199, at 709–10, 712–13.
  207. California v. Greenwood, 486 U.S. 35, 37 (1988).
  208. Id. at 36, 43.
  209. In Greenwood, police acquired the garbage from a trash collector. 486 U.S. at 37. In Hempele, the police themselves removed the garbage. State v. Hempele, 576 A.2d 793, 796 (N.J. 1990).
  210. State v. Hempele, 576 A.2d 793, 807–08 (N.J. 1990).
  211. Id. at 808.
  212. Id.
  213. Id.
  214. Id. at 814.
  215. See, e.g., State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019) (quoting State v. Brooks, 888 N.W.2d 406, 410–11 (Iowa 2016)) (“We jealously guard our right to construe a provision of our state constitution differently than its federal counterpart, though the two provisions may contain nearly identical language and have the same general scope, import, and purpose.”); Interest of B.C., 683 A.2d 919, 926 (Pa. Super. Ct. 1996) (“[I]t is well settled that our courts are free to establish greater protection of such rights in the provisions of the Pennsylvania Constitution.”); State v. Oquendo, 613 A.2d 1300, 1309 (Conn. 1992) (“[W]e have at times determined that the state constitution affords greater protections to the citizens of Connecticut than does the federal constitution, as interpreted by the United States Supreme Court.”).
  216. Faulkner & Green, supra note 17, at 198.
  217. I use Green’s estimate, taken from Harold Spaeth’s databases (available at http://scdb.wustl.edu/index.php), of 342 “Fourth Amendment” cases. Id.
  218. Id. at 200. Faulkner & Green cite one case, State v. Lopez, 896 P.2d 889 (Haw. 1995), in which they contend Hawaii departed from Terry. But the case is not about stop-and-frisk; it is about the unconstitutional search of a home. Moreover, in cases like State v. Ugalino, 107 Haw. 144, 150 (2000), Hawaii courts have “applied the standards set forth in Terry in determining whether police conduct complied with” the Hawaii constitution.
  219. Benjamin Zycher, Michael Bloomberg and the Stop-and-Frisk About Face, Am. Enter. Inst. (Nov. 19, 2019), https://www.aei.org/politics-and-public-opinion/‌michael-bloomberg-and-the-stop-and-frisk-about-face/ [https://perma.cc/B47W-YBEX].
  220. Maclin, supra note 196, at 202.
  221. Terry, 392 U.S. at 17, 26.
  222. Id. at 33 (Harlan, J., concurring).
  223. See Kavanagh v. Stenhouse, 174 A.2d 560, 562 (1961); People v. Rivera, 201 N.E.2d 32, 34–35 (1964).
  224. See Brief for the NAACP, supra note 52, at 26–27.
  225. This is not to say that the NAACP was at all comfortable with the current state of criminal procedure or the functioning of probable cause in American society. Asking if the standard “function[ed] unerringly, or with perfect clarity,” the brief responded sharply: “Of course, it does not.” Even in the progressive sixties, Black and brown Americans were still fighting a rearguard action to protect “the only standard which [the] Court ha[d] ever developed under the Fourth Amendment for judicial regulation of the police.” Id. at 29–30.
  226. Id. at 27.
  227. Id. at 29.
  228. Id. at 39.
  229. Id. at 39–40.
  230. Id. at 40 (citing Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L.J. 1, 22 (1958)).
  231. People v. Martin, 293 P.2d 52, 55 (1956) (Carter, J., dissenting) (quoting People v. Simon, 290 P.2d 531, 534 (1955)).
  232. See Rockefeller Signs Bills, supra note 77.
  233. Floyd v. City of New York, 959 F. Supp. 2d 540, 575 (S.D.N.Y. 2013).
  234. Id. at 558–59.
  235. Id. at 578.
  236. Id. at 559. In fact, this trend was only increasing when Floyd was decided. From 2004 to 2009, “the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.” Id.
  237. See, e.g., The National Association for the Advancement of Colored People
    ,

    Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America, (2014), https://www.prisonpolicy.org/scans/naacp/Born_Suspect_Report_final_web.pdf [https://perma.cc/MML3-HUVV].

  238. Floyd, 959 F. Supp. 2d at 559.
  239. Id.
  240. Ashley Southall & Michael Gold, Why ‘Stop-and-Frisk’ Inflamed Black and Hispanic Neighborhoods, N.Y. Times (Nov. 17, 2019), https://www.nytimes.com/2019/11/17/–nyregion/bloomberg-stop-and-frisk-new-york.html [https://perma.cc/F67P-Y29X].
  241. Ray Rivera, Al Baker, & Janet Roberts, A Few Blocks, 4 Years, 52,000 Police Stops, N.Y. Times (July 11, 2010), https://www.nytimes.com/2010/07/12/nyregion/12frisk.html [https://perma.cc/W4EE-8JVB].
  242. Id.
  243. Id.
  244. One reason that state constitutions provide a helpful mechanism to question stop-and-frisk is that the practice’s ramifications differ across the country. The examples below are from major cities, where Black Americans have been disproportionately stopped. Perhaps stop-and-frisk would be more palatable in a rural state where the same discriminatory practices are not as common.
  245. Chad Pradelli & Cheryl Mettendorf, Racial Disparities in Philadelphia Police’s Use of Stop-and-Frisk, Data Shows, 6 ABC Philadelphia (Sept. 9, 2020), https://6abc.com/stop-and-frisk-philadelphia-data-philly/6413942/ [https://perma.cc/8H9R-8ATC].

    Black residents make up 40% of Philadelphia’s population, but roughly 70% of the stops targeted Black Americans. Id.

  246. A.D. Quiq & Sarah Zimmerman, ‘Stop and Frisk’ Still Disproportionately Impacting Black Chicagoans: Study, Crain’s Chicago Business
    (

    Oct

    . 24, 2019)

    , https://www.chicagobusiness.com/government/stop-and-frisk-still-disproportionately-impacting-black-chicagoans-study [https://perma.cc/Z2S7-FPUC]. But see Monu Bedi, Commentary: Stop-and-Frisk Is Not Racist, and We Need to Stop Saying It Is, Chicago Tribune (Mar. 2, 2020), https://www.chicagotribune.com/opinion/commentary/ct-opinion-stop-and-frisk-police-bloomberg-20200302-6skrfrw5ujcppjdmq2jkqwmnya-story.html [https://perma.cc/5YPE-3MZX].

  247. Elliot C. Williams, New Stop-And-Frisk Data Still Shows Wide Racial Disparities in D.C., DCist

    (Mar. 5, 2020), https://dcist.com/story/20/03/05/new-stop-and-frisk-data-still-shows-wide-racial-disparities-in-d-c/ [https://perma.cc/RT5X-F4HJ]. See also Brianne K. Nadeau, Opinion, End Stop and Frisk in D.C., Wash. Post (Feb. 15, 2019), https://www.washingtonpost.com/opinions/localopinions/end-stop-and-frisk-in-dc/2019/02/14/cdd59c2c-2fab-11e9-8ad3-9a5b113ecd3c_story.html [https://perma.cc/FY9F-78YV] (calling on officials to “end the practice of stop and frisk in the District.”). But see Peter Newsham, Opinion, Yes, D.C. Police Use Stop and Frisk, but in a Legal Manner, Wash. Post (Feb. 22, 2019), https://www.washingtonpost.com/opinions/yes-dc-police-use-stop-and-frisk-but-in-a-legal-manner/2019/02/22/b85f6518-35f9-11e9-8375-e3dcf6b68558_story.html [https://perma.cc/GLA2-SFML].

  248. NAACP
    ,

    supra note 236.

  249. See discussion supra Part III.
  250. Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 St. John’s L. Rev. 1097, 1125 (1998).
  251. Brief for the NAACP, supra note 52, at 22–23; Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 366 (1974) (“[T]he primary abuse thought to characterize the general warrants and the writs of assistance was their indiscriminate quality, the license that they gave to search Everyman without particularized cause . . .”). For a more in-depth study, see generally William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791 (2009) (surveying the history of unreasonable searches and seizures stemming from the traditional British maxim of privacy within the home and shaped by early use of the general warrant).
  252. See Cuddihy
    ,

    supra note 250, at 602 (“[T]he laws and constitutions of most states abrogated general warrants and searches years before the Fourth Amendment did so.”). Cuddihy also noted,

    Not only did those [state] constitutions disallow general warrants, they also elevated specific warrants, probable cause, and the idea of unreasonable search and seizure to the position of higher law.” Id. at 603. In particular, “John Adams articulated the most far-reaching repudiation of general warrants in the constitutions of 1776–84.” Id. at 609.

  253. Terry v. Ohio, 392 U.S. 1, 17 (1968); see also Brief for the NAACP, supra note 52, at 35–38.
  254. People v. Rivera, 201 N.E.2d 32, 36 (1964) (Fuld, J., dissenting).
  255. Terry, 392 U.S. at 29.
  256. Id. at 27.
  257. A study by the New York Civil Liberties Union showed a frisk occurring in 66% of stops. NYCLU, Stop-and-Frisk in the De Blasio Era 14 (2019), https://www.nyclu.org/–en/publications/stop-and-frisk-de-blasio-era-2019 [https://perma.cc/5U2X-QHAT].
  258. White & Fradella, supra note 11, at 110.
  259. Brief for the NAACP, supra note 52, at 50.
  260. Id. (quoting People v. Taggart, 229 N.E.2d 581, 586 (N.Y. 1967)).
  261. White & Fradella, supra note 11, at 63. A more recent study in the De Blasio era found weapons discovered in 7% of frisks. NYCLU, supra note 256.
  262. White & Fradella, supra note 11, at 104 (citing Report of Jeffrey Fagan, Ph.D., at 4, Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013)).
  263. Id. See also Benjamin Mueller, It Wasn’t a Crime to Carry Marijuana. Until the Police Found a Loophole., N.Y. Times (Aug. 2, 2018), https://www.nytimes.com/2018/08/02/–nyregion/marijuana-police-nyc.html [https://perma.cc/8QE9-VCUV] (describing how “police officers stopping and frisking people [would] ask[] them to empty their pockets, and when marijuana fell out, [the police officers would] arrest[] them because their hidden stash had suddenly become ‘open to public view’”).
  264. Mueller, supra note 262; see Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness
    170

    (2010) (noting that stop-and-frisk operations “amount to much more than humiliating, demeaning rituals for young men of color” and “often serve as the gateway into the criminal justice system”).

  265. Stop-and-Frisk: The Facts, ACLU N.J., https://www.aclu-nj.org/theissues/–police‌practices/newark-stop-and-frisk-data/stop-and-frisk-facts [https://perma.cc/KH7K-722K].
  266. Pradelli & Mettendorf, supra note 244.
  267. Eric Flack & Jordan Fischer, DC Police Search and Frisk Black People 6 Times More Often During Stops, Data Shows,
    WUSA9

    (June 15, 2020), https://www.wusa9.com/article/–news/crime/stop-and-frisk/blacks-6-times-more-likely-to-be-searched-in-dc-than-whites-stop-and-frisk-black-lives-matter/65-379ed07f-bc94-45c0-a7a8-2193601c6df0 [http://perma.cc/VH47-V3U2].

  268. Floyd v. City of New York, 959 F. Supp. 2d 540, 559 (S.D.N.Y. 2013) (“In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.”); see also ACLU of Ill., Stop and Frisk in Chicago 23 (2015), https://www.aclu-il.org/sites/default/files/wp-content/uploads/2015/03/ACLU_–StopandFrisk_6.pdf [https://perma.cc/XJL2-ZKHV] (“A study prepared for the ACLU of Southern California found that during a one-year period from 2003 to 2004, black and Hispanic residents were far more likely to be stopped, frisked, searched and arrested than white residents, and that black and Hispanic residents who were searched were less likely to have contraband than white residents.”).
  269. White & Fradella, supra note 11, at 110.
  270. Id. (“88 percent of young people surveyed believe that residents of their neighborhood do not trust the police.”).
  271. Id. at 109.
  272. Center for Constitutional Rights, Stop and Frisk: The Human Impact 5 (2012), https://ccrjustice.org/sites/default/files/attach/2015/08/the-human-impact-report.pdf [perma.cc/7DEF-WWK4]; see also Jason Meisner, Chicago Sued Over Police Department’s Alleged Stop-and-Frisk Practices, L.A. Times (Apr. 21, 2015), https://www.latimes.com/–nation/ct-stop-and-frisk-lawsuit-met-20150421-story.html (describing alleged constitutional abuses like excessive force) [https://perma.cc/N2G7-2JZG].
  273. Center for Constitutional Rights, supra note 271, at 5. These are a few accounts of NYPD encounters during the Floyd era. “It’s the difference between frisking somebody and going in [their] underwear or like putting gloves on outside, checking other people’s private areas, and people’s rectal area to see if they have drugs in them. It’s just too much, outside—that’s embarrassing.” Id. (alteration in original). Another said:

    My jeans were ripped. I had bruises on my face. My whole face was swollen . . . . I felt like I couldn’t defend myself, didn’t know what to do. No witnesses there to see what was going on. I just wish someone was there to witness it. I felt like no one would believe me. I couldn’t tell anyone. I kept it in till now . . . I still am scared.

    Id. (second alteration in original).

  274. ACLU of Ill., supra note 267, at 21.
  275. Id. at 22–23.
  276. Center for Constitutional Rights, supra note 271, at 5–6.
  277. Id. at 6.
  278. White & Fradella, supra note 11, at 10–11.
  279. 508 U.S. 366, 381 (1993) (Scalia, J., concurring).
  280. Id.
  281. Id. at 380.
  282. Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
  283. Brief for the NAACP, supra note 52, at 38.
  284. See Kansas v. Carr, 577 U.S. 108, 118 (2016) (“The state courts may experiment all they want with their own constitutions, and often do in the wake of this Court’s decisions.”) (citing Jeffrey S. Sutton, San Antonio Independent School District v. Rodriguez and Its Aftermath, 94 Va. L. Rev. 1963, 1971–77 (2008)).
  285. Terry, 392 U.S. at 29; see also People v. Faginkrantz 171 N.E.2d 5, 7 (1960) (“What the constitution prohibits is an unreasonable search and seizure, and the circumstances of this case do not establish that the search was unreasonable.”).
  286. See supra note 86 and accompanying text.
  287. Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257, 264 (1984).
  288. Amar, supra note 249, at 1098.
  289. Id.
  290. Id.
  291. Brief for the NAACP, supra note 52, at 45.
  292. See, e.g., Opinion, Stop Talking and Start Listening, White People, Wash. Post (June 9, 2020), https://www.washingtonpost.com/opinions/stop-talking-and-start-listening-white-people/2020/06/09/7071da24-a9a2-11ea-a43b-be9f6494a87d_story.html [perma.cc/Q8J6-M5NU].
  293. White & Fradella, supra note 11, at 10–11.
  294. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019) (Kavanaugh, J., concurring).
  295. Confirmation Hearing on the Nomination of Amy Coney Barrett To Be an Associate Justice on the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (2020) (statement of Amy Coney Barrett, Judge).
  296. Id.
  297. Brennan, supra note 182, at 503.
  298. Sutton, supra note 175, at 212.

The Origins of Accommodation: Free Exercise, Disestablishment, and the Legend of Small Government

This Note brings novel historical evidence to bear on the question of whether religious exemptions from neutral, generally applicable laws are compelled by the First Amendment. In the wake of the Supreme Court’s decision in Smith (1990), a robust scholarship on relevant historical practice has emerged on both sides of the issue. Those in favor of religious exemptions argue that history supports their position because (1) the period after ratification was marked by extensive religious freedom and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.

This Note shows how recently uncovered evidence about the disestablishment regulation of religious institutions, especially the proliferation of the corporate form, undermines both of these propositions. Religious freedom in the period after ratification was sought through government regulation, not through exemption, and early state governments were hardly limited in their invasions into church domain. An accurate history matters here. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence and the addition of Justices committed to constitutional interpretation centered on historical meaning indicate that the history of free exercise during the Founding era may prove decisive the next time that the Court considers the issue of religious exemption.

Introduction

In 1813, Father Anthony Kohlmann, rector of St. Peter’s Church in New York City, found himself between a rock and a hard place.1.See generally Walter J. Walsh, The First Free Exercise Case, 73 Geo. Wash. L. Rev. 1 (2004) (recounting the history of Father Kohlmann’s case at length).Show More One of his parishioners, James Keating, had reported a theft of jewelry to the police.2.William Sampson, The Catholic Question in America 5 (N.Y., Edward Gillespy 1813).Show More Later, Keating withdrew his complaint after his property was returned.3.Id.Show More Keating, out of fear of being arrested, admitted that Father Kohlmann arranged the return of his stolen goods.4.Id.Show More Based on other evidence, two immigrants who were members of St. Peter’s were indicted as receivers of the stolen property, and Father Kohlmann was called as a witness to identify those whom he had convinced to return the stolen jewelry.5.Id. at 5–6.Show More The priest had a choice: refuse to testify and be jailed, or reveal the names of his penitent parishioners and, in his own words, “become a traitor to my church, to my sacred ministry and to my God.”6.Id. at 9; Walsh, supra note 1, at 21.Show More A lower state court found that the choice Father Kohlmann had been put to was untenable. It held that an exemption from the evidentiary requirements of the courtroom was mandated by the New York Constitution’s religious free exercise provision.7.SeeSampson, supra note 2, at 108–14.Show More

As the first state court decision to require an exemption on the basis of free exercise,8.See Walter J. Walsh, The Priest-Penitent Privilege: An Hibernocentric Essay in Postcolonial Jurisprudence, 80 Ind. L.J. 1037, 1038 n.4 (2005).Show More Father Kohlmann’s case—known as People v. Philips—has become a popular object of study.9.See Walsh, supra note 1; Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1410–12 (1990).Show More For those who believe that the Federal Constitution’s Free Exercise Clause requires similar exemptions, Father Kohlmann’s case is evidence that early state practices were consonant with a pro-exemption interpretation of the First Amendment.10 10.Walsh, supra note 1, at 2, 95; McConnell, supra note 9, at 1410–12.Show More Recent scholarship calls the case “the first constitutional victory for religious freedom,” and argues that this lower state court decision belongs “at the historical center of judicial and scholarly free exercise discourse.”11 11.Walsh, supra note 1, at 1–2.Show More That history, according to those in favor of exemptions, was characterized by an “Expansive Conception of Religious Freedom,” one that emerged in the context of a limited American government that stayed in its lane, out of the way of religion.12 12.McConnell, supra note 9, at 1436; see also infra Section II.A (summarizing the pro-exemption view of the historical record).Show More

But the story of Father Kohlmann’s Scylla and Charybdis, and of this rare13 13.McConnell notes that there was little litigation over early religion clauses in either the state or Federal Constitutions. See McConnell, supra note 9, at 1503.Show More early litigation, central to the historical case for free exercise exemptions, has been read in isolation. A fuller assessment of the nature of the religious freedom that New York recognized in 1813 requires considering not only Father Kohlmann’s exemption but also the laws that his church was subject to at the time: onerous and invasive state regulations from which no exemption was sought or given. In 1813, St. Peter’s Church, like others in New York, was governed by a board of trustees.14 14.SeeWalsh, supra note 1, at 21.Show More These lay members of the church were vested with power from the state and controlled church property and decision making.15 15.See Patrick J. Dignan, A History of the Legal Incorporation of Catholic Church Property in the United States, 1784–1932, at 53–54 (1933).Show More As the earliest Catholic Church in New York City, St. Peter’s had elected to incorporate under state law in 1785, just one year after the state extended the power to incorporate to Catholic churches.16 16.See id. at 54.Show More In 1813, the same year that Father Kohlmann won his exemption, the state updated its corporate law governing religious institutions and placed the control of church property, minister salaries, “rules and orders for managing the temporal affairs” of the church, and even the power to break ground in cemeteries firmly in the hands of the majority of lay trustees.17 17.See An Act to Provide for the Incorporation of Religious Societies, ch. 60, §§ 3–4, 8, 2 N.Y. Sess. Laws 212, 214–15, 217 (1813).Show More

In light of the requirements of New York’s corporate law, the Catholic Church which Father Kohlmann led was not only his to control. As Walsh points out, while the district attorney sought to drop the prosecution, it was the church’s lay trustees, not its priest, who insisted that the case be brought to trial, hoping to publicly secure the priest-penitent privilege in New York.18 18.SeeWalsh, supra note 1, at 21.Show More Contrary to Catholic ideology, then, St. Peter’s temporal property and direction were held by the church’s lay trustees, backed and governed by the state’s corporate laws.19 19.See Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property Before the Civil War, 162 U. Pa. L. Rev. 307, 347–50 (2014) (documenting the disruptive quality of disestablishment corporate law for Catholicism in America).Show More These legal mechanisms controlling religious institutions in New York were typical of regulations across the country, most of them passed during the era that Sarah Gordon calls the “First Disestablishment.”20 20.Id. at 307, 311–12. Gordon dates the First Disestablishment as occurring between 1786 and 1833. Id. at 310.Show More Sounding in corporate law, these regulations restricted church property, interfered with internal church governance, and shaped what “religious freedom” meant in New York and in the early United States.21 21.Id. at 321–24.Show More Yet this history has thus far been largely ignored, both by those championing People v. Philips as a high watermark of religious freedom and, more generally, in the fierce debate over the history of the Free Exercise Clause.22 22.See infra Section II.D.Show More This Note refracts that debate through the lens of disestablishment regulation of religious institutions. In doing so, it posits that state interventions into religion during the First Disestablishment undermine the historical case for religious exemptions.

It is important to precisely identify the constitutional issue at play, one that remains hotly contested some 200 years after Father Kohlmann took confession. The question is this: Where a neutral, generally applicable law imposes an incidental burden on an individual’s free exercise of religion, does the Constitution mandate an exemption?23 23.This framing of the issue reflects the Supreme Court’s most recent significant re-appraisal. See Emp. Div. v. Smith, 494 U.S. 872, 883–89 (1990).Show More The center of the exemptions debate thus turns on the standard of judicial review applicable to incidental burdens on religion.24 24.See Douglas Laycock, The Religious Exemption Debate, 11 Rutgers J.L. & Religion 139, 141–42 (2009).Show More Must the government offer merely some form of rational basis to defend a generally applicable law against a claim of exemption, or does the government need to demonstrate that it has a compelling interest and has narrowly tailored the statute at issue?25 25.Compare Smith, 494 U.S. at 879 (asserting that the right to free exercise does not reach a “valid and neutral law of general applicability”), with id.at 894–95 (O’Connor, J., concurring in judgment) (citing precedent that requires the government to justify a substantial burden on free exercise with a “compelling state interest and by means narrowly tailored to achieve that interest”).Show More Those in favor of exemptions argue that the government must do the latter in order to impose incidental burdens on religious free exercise.26 26.See, e.g., Laycock, supra note 24, at 151.Show More Those opposed to exemptions contend that no such showing is required and that neutral and generally applicable laws do not trigger heightened review under the Free Exercise Clause.27 27.See, e.g., Smith, 494 U.S. at 879 (holding that heightened review was not required for a neutral, generally applicable law that imposed an incidental burden on the free exercise of religion); Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915, 936–40 (1992) (arguing that the original understanding and practice under the Free Exercise Clause provides no support for a right to regulatory exemptions).Show More

Since the Supreme Court first encountered the issue of religious exemptions in 1878,28 28.SeeReynolds v. United States, 98 U.S. 145, 166 (1878).Show More the doctrine has evolved between these positions. In contrast to the Court’s Establishment Clause jurisprudence,29 29.Recent Establishment Clause jurisprudence has featured various forms of historical analysis as part of the Court’s decision making. See, e.g., Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2089 (2019) (“The practice begun by the First Congress stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”); Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8–14 (1947) (tracing disestablishment history beginning with immigration from Europe); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 852–62 (1995) (Thomas, J., concurring) (contextualizing Madison’s Memorial and Remonstrance Against Religious Assessments to argue that the Establishment Clause does not require the government to exclude religious adherents from generally available government subsidies); id. at 868–72 (Souter, J., dissenting) (denying Justice Thomas’ characterization of Madison’s letter).Show More the Court has often ruled on free exercise exemption claims without reference to the history of the First Amendment.30 30.See Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame L. Rev. 1793, 1794–95 (2006).Show More However, in the aftermath of Employment Division v. Smith—one of the Court’s most significant and least historically inflected decisions on the issue—a vibrant scholarly debate developed around the history of the Free Exercise Clause, with academics interpreting Founding-era historical sources in order to support their preferred interpretation of the First Amendment.31 31.See infra Part II.Show More Faced with an ambiguous constitutional provision and little legislative history, scholars and Supreme Court Justices have turned to persuasive authority in an attempt to determine whether the Free Exercise Clause at the time of the Founding accorded with, required, or ran against, constitutionally compelled exemptions for religion.

The sources of historical authority relied on in the exemptions debate are numerous, yet recent research on disestablishment regulation of religious institutions has hitherto been ignored. Gordon’s intervention—analyzing state regulation of religious institutions as states removed government support for the church following ratification—casts doubt on two of the premises undergirding the historical case for religious exemptions. Those in favor of constitutionally compelled religious exemptions argue that (1) the period after ratification was marked by an “expansive conception of religious freedom” consonant with constitutionally required exemptions for religious free exercise and (2) the early United States was characterized by a limited government that stayed in its lane, out of the way of religion.32 32.See, e.g., McConnell, supra note 9, at 1415, 1436–49 (advancing both of these positions).Show More The history of disestablishment regulations complicates the first of these arguments because, as Gordon argues, religious freedom during disestablishment was sought through government regulation of the church, not through the exemption of religious institutions from the law.33 33.See infra Part III.Show More The proposition that early American government was “limited” is even more seriously undermined by the history of disestablishment, which demonstrates that early state government relations with the church were characterized by invasive state oversight, especially through corporate laws regulating private property and lay governance.34 34.Id.Show More

This limited intervention does not add to Gordon’s impressive recent work on disestablishment history. Instead, this Note draws out the full significance of that history, by showing how disestablishment regulation unsettles the free exercise exemption debate. Gordon framed her intervention in terms of the relationship between religious institutions and individual conscience.35 35.See Gordon, supra note 19, at 311 (“This first system of disestablishment imposed discipline on religious institutions . . . based on concerns for individual conscience and lay control.”).Show More Yet the story that she uncovered—of religious liberty sought in and through state regulation—is also powerful evidence of the nature of the Free Exercise Clause after ratification. A full account of the history matters for two reasons. On the one hand, disestablishment regulations of religious institutions bear on how we think about the rights of religious individuals and institutions.36 36.See, e.g., Michael W. McConnell, John H. Garvey & Thomas C. Berg, Religion and the Constitution 64 (4th ed. 2016) (a leading textbook on the subject).Show More On the other, this history may well shape the Supreme Court’s future free exercise jurisprudence. The Supreme Court’s recent return to history in its Establishment Clause jurisprudence,37 37.See supra note 29 and accompanying text.Show More and the addition of Justices committed to constitutional interpretation centered on historical meaning,38 38.There is good reason to believe that Justices Gorsuch, Kavanaugh, and Barrett are open to, if not outright supporters of, historical analysis as a supplement to constitutional interpretation. SeeNeil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the Legacy of Justice Scalia, 66 Case W. L. Rev. 905, 906 (2016) (arguing that judges should seek to apply the law by looking to “text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be”); Tucker Higgins, Read Brett Kavanaugh’s Full Opening Remarks in his Supreme Court Confirmation Hearing, CNBC (Sept. 4, 2018), https://www.cnbc.com/2018/09/04/read-brett-kavanaughs-full-rem­arks-to-the-senate-judiciary-committee.html [https://perma.cc/6QRM-H8K2] (“A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent.”); Kanter v. Barr, 919 F.3d 437, 453–65 (7th Cir. 2019) (Barrett, J., dissenting) (performing an in-depth historical analysis to conclude that “[h]istory does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons,” but “it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous”).Show More indicate that the history of free exercise during the Founding era may well prove decisive the next time that the Court considers the issue of religious exemptions.39 39.The Supreme Court has granted certiorari and received merits briefs on the question of whether to overrule Smith. As of this Note’s writing, the Court’s opinion has not been released. Petition for Writ of Certiorari at i, Fulton v. City of Philadelphia, 140 S. Ct. 1104 (2020) (No. 19-123); Brief for Petitioners at 37, Fulton, 140 S. Ct. 1104 (No. 19-123); Brief for City Respondents at 47, Fulton, 140 S. Ct. 1104 (No. 19-123); see also Micah Schwartzman, Richard Schragger, & Nelson Tebbe, Symposium: Religious Privilege in Fulton and Beyond, SCOTUSblog (Nov. 2, 2020, 9:29 AM), https://www.scotusblog.com/­2020/11/symposium-religious-privilege-in-fulton-and-beyond/ [https://perma.cc/42ED-WR­NT] (discussing the new conservative majority’s likely path in expanding free exercise rights). And four of the Court’s conservative Justices have signaled an intent to reverse Smith. Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of certiorari) (signaling an intent to “revisit” Smith); Howard Gillman & Erwin Chermerinsky, The Weaponization of the Free Exercise Clause, Atlantic, (Sept. 18, 2020), https://www.theatlantic.com/ideas/archive/2020/09/weaponization-free-exercise-clause/616373/ [https://perma.cc/3GJZ-EEVN] (arguing that “the conservative justices on the current Court reject Scalia’s reasoning and may be about to overrule Employment Division v. Smith”); Eugene Volokh, Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws?, Volokh Conspiracy (Jan. 1, 2019), https://reason.com/2019/01/22/will-the-court-read-the-free-exercise-cl/ [https://perma.cc/7LDL-W788] (observing that the statement denying certiorari in Bremerton suggested the four Justices’ willingness to overrule Smith and that Justice Breyer had echoed this sentiment in City of Boerne v. Flores, 521 U.S. 507 (1997)).Show More

The first Part of this Note summarizes the three major phases of free exercise doctrine in the Supreme Court, with particular attention to the Court’s irregular engagement with historical evidence. Second, the extant scholarship on the history of free exercise is summarized, along with its influence in the Supreme Court. The Note’s third Part considers recent research on early state regulations applicable to religious institutions during the First Disestablishment. This Part shows how disestablishment history qualifies claims about expansive religious freedom and “limited” government during the Founding era. This Part also considers three objections to the use of disestablishment history to interpret the meaning of the Constitution’s Free Exercise Clause. The Note concludes by reflecting on the importance of the exemptions issue during the Founding era and today, the stakes of historical analysis for the Supreme Court’s Religion Clauses jurisprudence, and the potential for a historically inflected reappraisal of Free Exercise Clause doctrine.