Reviving National Muffler: Analyzing the Effect of Mayo Foundation on Judicial Deference as Applied to General Tax Authority Guidance

Matthew H. Friedman*

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Introduction

The topic of judicial deference arises each time a court reviews the legitimacy of an opinion or regulation by an administrative agency to which Congress has delegated some rulemaking authority. Determining the appropriate deference standard is important because it sets limits on an agency’s quasi-legislative power and informs taxpayers and practitioners on the likelihood of challenging seemingly invalid administrative rulings. Noting the importance of the deference issue, Professor Kristin E. Hickman,[1] one of the foremost authorities on administrative law in the federal income tax context, wrote that "[d]rawing fine distinctions among deference standards may seem a purely academic exercise . . . [but] deference standards matter."[2]

For thirty-five years, the 1944 case of Skidmore v. Swift & Co. presented the primary method for judicial review of administrative guidance created under Congress's general grant of rulemaking authority.[3] In 1979, a new standard was created in what became known as the tax-specific deference standard of National Muffler Dealers Association v. United States.[4] Five years later, the Supreme Court held in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. that a separate and much more deferential standard should apply to final regulations drafted pursuant to a general grant of authority.[5] The Chevron decision cast doubt upon the viability of both Skidmore and National Muffler since it was unclear whether the decision applied to all regulations promulgated pursuant to general grants of authority and whether it applied to tax-related guidance. This confusion persisted until the Court decided two cases in 2000 and 2001 that distinguished between Skidmore and Chevron deference.[6] Unfortunately, the Court's distinction did not provide specific or uniform direction for the treatment of all general authority guidance and to this day the Court has failed to give clearer instruction.

Why Congress Did Not Think About the Constitution When Enacting the Affordable Care Act

Neal Devins*

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Introduction

Over the next few months, the Supreme Court will spend far more time thinking about the constitutionality of the Patient Protection and Affordable Care Act (ACA)[1] than Congress did when enacting the ACA.  Lawmakers largely ignored the Constitution; congressional hearings never considered whether the Supreme Court would uphold the statute nor did lawmakers engage in constitutional fact-finding.  Instead, consistent with the conclusions in my recent Northwestern University Law Review article, Party Polarization and Congressional Committee Consideration of Constitutional Questions ("Party Polarization"),[2] lawmakers were far more invested in advancing the partisan aims of their party than sorting out the constitutional implications of the signature legislative accomplishment of the 111th Congress.

In this Essay, I will provide a descriptive account of Congress's general disinterest in the Constitution when enacting the ACA.  In so doing, this Essay will serve as a case study that bolsters the claims and evidence in my Party Polarization article.  This Essay is but one in a series on party polarization and committee behavior regarding the Constitution.  In a forthcoming essay that will appear in the print pages of the Northwestern University Law Review, I will extend this Essay's case study to make broader claims about the impact of party polarization on Congress's interest in federalism, including congressional fact-finding on bills which implicate constitutional federalism.

Getting at Recess Appointments

Just weeks ago, President Obama announced that he would use a recess appointment to make Richard Cordray the director of the Bureau of Consumer Financial Protection.  Cordray had been nominated to the post months earlier, but Senate Republicans blocked his confirmation based on opposition to the agency’s structure and power.  President Obama went forward with the recess appointment despite the fact that the Senate was holding pro forma sessions and thus not officially in recess.  The constitutionality of the President’s decision immediately came under scrutiny, culminating in the release of a Department of Justice memo justifying the appointment.

Similar issues were the subject of a prior Colloquy exchange between Professors Tillman and Kalt. Because that exchange is particularly relevant in light of recent events, we have posted it here for interested readers.

Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman

Brian C. Kalt[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

Seth Barrett Tillman’s reply[1] warrants a rejoinder on two points.  First, I reject Tillman’s defense of his claim that the Senate can unilaterally terminate its half of a regular session of Congress.  Second, Tillman argues that the Senate can terminate a special Senate-only session called by the President, and claims that I disagree.  I did not and do not.

Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt

Seth Barrett Tillman[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

In my opening article,[1] I took the position that although the Recess Appointments Clause[2] is traditionally imagined as merely a grant of authority to the President, it grants a coordinate power to the Senate.  If the Senate chooses to end its next session, the President's recess appointment has been terminated.

Professor Kalt acknowledges that the end of the Senate's session terminates a recess appointment, even if the recess is made only for an instant and only for the purpose of terminating recess appointees.[3]  Beyond that, he voices some thoughtful constitutional objections to my proposal.  Finally, he suggests that the proposed innovation, which he colorfully calls a "Tillman adjournment," is muddled by "practical problems" rendering it "pointless at best."[4]

Keeping Recess Appointments in Their Place

Brian C. Kalt[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

The federal appointment process has degenerated in recent decades.  As the Senate has become more comfortable ignoring nominations instead of rejecting them, Presidents have become more comfortable pushing their recess-appointment powers to their fullest extent—and perhaps beyond.[1]  In his piece on the Recess Appointments Clause, Seth Barrett Tillman offers a clever way for the Senate to respond, which I will call the "Tillman adjournment."[2]  This response suggests some reasons why the Senate is unlikely to try a Tillman adjournment.  In brief, the tactic suffers from both constitutional problems and even deeper practical problems.

Senate Termination of Presidential Recess Appointments

Seth Barrett Tillman[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

To a fair-minded person assessing the broad ramparts of American constitutional scholarship, it is striking how little attention legal scholars and public intellectuals pay to the text of the United States Constitution.  The document is a mystery to many of them.  Mostly they concern themselves with prior judicial decisions.  If a clause is not litigated, it is, as Judge Posner put it, off their "radar screen."[1]  Even where a particular constitutional provision is the subject of litigation, the judicial opinions almost invariably lead to scholarship assessing the propriety of the decision, as opposed to still-open aspects of the clause's meaning.  Thus the history of our legal scholarship leads to an ever narrowing legal imagination, with the rhetoric of debate escalating over constantly declining intellectual stakes.

But as citizens and lawyers interested in policy reform, including the institutional reform of our governing bodies, we should not limit ourselves to these narrow disputes.  The whole of the Constitution is within our grasp, if we would but seize it.  And, even today, the Constitution remains chock-full of unused (and therefore judicially untested and unapproved) powers whose potential might be used, or, at least, explored.[2]

One such power is the power of a Senate majority[3] to terminate a presidential recess appointment.  The Recess Appointments Clause, Article II, Section 2, Clause 3, states:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Certain aspects of this clause have been adjudicated and are much discussed in the academic literature.  For example, it has been questioned whether this power extends to the President's making appointments to the Article III courts,[4] whether the President can make a recess appointment after the Senate has returned from its recess to an office which had become vacant during (or prior to) the recess,[5] and whether the President can make a recess appointment during a recess to a statutory office that had never before been filled.[6]  These debates uniformly go to the limits of the President's power to appoint under the terms of the clause.  There is no discussion of any concomitant removal power—it is just assumed that the removal power (wherever it is vested) with regard to recess appointments is coextensive with the removal power generally.  This short article seeks to test that assumption.

A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota

By Ilya Somin[*]

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Few doubt that states can provide greater protection for individual rights under state constitutions than is available under the Supreme Court’s interpretation of the Federal Constitution.  More difficult issues arise, however, when state courts seek to provide greater protection than the Court requires for federal constitutional rights.  Can state courts impose remedies for violations of federal constitutional rights that are more generous than those required by the Federal Supreme Court? That is the issue raised by the Court’s recent decision in Danforth v. Minnesota.[1]  In a 7-2 decision joined by an unusual coalition of liberal and conservative justices, the Court decided that state courts could indeed provide victims of constitutional rights violations broader remedies than those mandated by federal Supreme Court decisions.  I contend that this outcome is correct, despite the seeming incongruity of allowing state courts to deviate from the Supreme Court’s interpretation of the Federal Constitution.  The Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for it to also mandate a ceiling.

Part I briefly describes the facts and background to Danforth.  In Part II, I provide a doctrinal justification for the Supreme Court’s decision.  It makes sense to allow state courts to provide more generous remedies than those mandated by the federal courts in cases where restrictions on the scope of remedies are not imposed by the Constitution itself, but are instead based on policy grounds.  State courts can legitimately conclude that these policy grounds are absent or outweighed by other considerations within their state systems, even if they are compelling justifications for restricting the scope of remedies available in federal courts.  State courts are in a better position to weigh the relevant tradeoffs in a state legal system than federal courts are.

Part III explains the potential policy advantages of allowing interstate diversity in remedies, most importantly inter-jurisdictional competition and an increased ability to provide for diverse citizen preferences and local conditions across different parts of the country.  The optimal remedy for a constitutional rights violation in New York may well be different from the optimal remedy for one that occurs in Mississippi.

Is Dick Cheney Unconstitutional?

By Glenn Harlan Reynolds[*]

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The Vice Presidency “isn’t worth a bucket of warm spit.”
Vice President John Nance Garner[1]

Twenty years ago I wouldn’t have advised my worst enemy to take the Vice-Presidency.  It was God’s way of punishing bad campaigners, a sort of political purgatory for the also-rans.  Now you’d be crazy not to take the job. 
Aide to President Ronald Reagan[2]

Many a true word is spoken in jest, we’re told.  More surprisingly, sometimes the truth even emerges, unsought, from the mouths of politicians and their flacks.  This may be the case with regard to recent claims by Vice President Dick Cheney’s office that he is, properly speaking, a “legislative officer” rather than a member of the executive branch.[3]  The consequences of this argument, however, may prove unpalatable to the Bush Administration on closer examination.  Indeed, an activist Vice Presidency, in the Cheney model, might be considered unconstitutional if the Vice President is regarded as a legislative official.  And, regardless of whether that characterization controls, there may be prudential reasons for keeping the Vice President at a greater remove from executive affairs than has recently been the case.

Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman

By Brian C. Kalt[*]      

[Editor's Note:  This piece is the last of a four-part dialogue between Tillman and Kalt.  You can find Tillman's first piece here, Kalt's first reply here, and Tillman's reply here.]                

Seth Barrett Tillman’s reply[1] warrants a rejoinder on two points.  First, I reject Tillman’s defense of his claim that the Senate can unilaterally terminate its half of a regular session of Congress.  Second, Tillman argues that the Senate can terminate a special Senate-only session called by the President, and claims that I disagree.  I did not and do not.