The Solicitor General’s Foolish and Feeble Excuse

The Solicitor General is the Executive Branch’s officer in charge of litigation before the Supreme Court. The incumbent, Donald Verrilli, recently gave a speech in which he reflected on the difficulty of his post.  “We’re at a time when a majority of the Supreme Court has a strong ideological perspective different from the president,” he said, adding that, “aside from the New Deal, this is probably the greatest amount of friction between the executive and judicial branches.”

The Supreme Court justices—all of them—believe they are applying the law in deciding cases, not indulging their political ideology. Even if Verrilli thinks otherwise and believes judges are essentially politicians in robes, it is foolish for the Solicitor General to impugn the self-conception of the justices he must persuade. .

And the claim that  there are more fundamental differences between the Obama administration and any other Court except in the New Deal era  is wrong. Begin at the beginning: the Jefferson administration so strongly opposed the review of its executive acts by the Supreme Court that it declined to participate in Marbury v. Madison, raising the prospect that it would not comply with an adverse decision.

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Originalism, Recess Appointments, and The SG’s Noel Canning Cert Petition

As many readers know, the Solicitor General’s Office has sought cert in the Noel Canning Recess Appointments case. Solicitor General briefs are supposed to be the best of the best, but in reviewing the brief I have found a problem: At the least, the SG’s Office has made an assertion without adequate support and in my view has probably made a misstatement about the history. This post will be getting into some detail, but it is necessary to correct the record.

One of the issues in the Recess Appointments case is whether the President may recess appoint someone to an office that was vacant when the Senate was in session. While I believe the text, structure, and history strongly indicate that he may not, the SG argues the opposite.

While the SG brief repeats many of the old arguments, it does present some new evidence. The most important originalist evidence that the SG offers is the claim that in November 1793, George Washington “recess appointed Robert Scot to be the first Engraver of the Mint, a position that was created by a statute enacted in April 1792. The vacancy arose when the statute was first passed, and was then filled during a later recess after at least one intervening session.” (P. 25)  If this claim withstood scrutiny, it would constitute the earliest example of a recess appointment made to an office that had been vacant during the session. But it doesn’t.

Here is a very plausible explanation as to how the recess appointment of Robert Scot was not to a position that was vacant during the session. The statute establishing the mint provided for various officers, including both the Chief Coiner and the Engraver. The statute specifically stated, however, that “it shall be lawful for the functions and duties of Chief Coiner and Engraver to be performed by one person.” 1 Stat. 247.  It turns out that Henry Voigt was appointed as the Chief Coiner (through a presidential nomination and consent of the Senate) in January 1793 (during the session of Congress).

Since there was no person serving as Engraver, it is reasonable to assume that Voigt performed both jobs. At a certain point, however, one may assume that President Washington determined that it made sense to fill the position with a separate person. If Washington made that decision during the recess of that year, then the office would have become vacant at the time. Thus, the recess appointment of Scott as Engraver would have occurred for an office that became vacant during the session.

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The Views of the SG Aren’t Worth a Dang

Some time ago, I commented on the Supreme Court’s increasing doubts about the Solicitor General’s good faith and candor. More in this vein comes from a party brief in a pending certiorari petition. The Court CVSG’s the case (i.e.,  asked for the view of the SG whether cert should be granted). The SG opposed. From the brief:

The Solicitor General’s position is in keeping with a pattern of apparent reluctance to support review even when substantial factors warranting certiorari are present.  The Solicitor General recommended denial in 21 of the 22 invitation briefs filed between August 26, 2011, and November 30, 2012.  The Court has granted review in many of those cases; four have already been argued this Term, and another is awaiting argument.  Ryan v. Gonzales (10-930); Decker v. Northwest Environmental Def. Ctr. (11-338, 11-347); Los Angeles Cnty. Flood Control Dist. v. NRDC (11-460); Vance v. Ball State Univ. (11-556); Bowman v. Monsanto Co. (11-796).  Yet another argued case, Kirtsaeng v. John Wiley & Sons (11-697), presents an issue on which the Court granted certiorari in 2010 over the Solicitor General’s contrary recommendation, but the Court divided evenly in the 2010 case presenting that issue.

Zing. Having looked at CVSG filings over the years, and having read a very fine law review article on the empirics, I assure you that these numbers are entirely unprecedented. Small wonder: it cannot possibly be the case that every case the justices deem worthy of at least a careful look is a dud. The “no cert ever” posture requires some very fancy footwork.

The case at hand, American Trucking Ass’n v. Los Angeles11-798, is a fine illustration. It arises over the preemptive force of the FAAAA (not a typo: you’re looking at the Federal Aviation  Administration Authorization Act.) As the petitioners (represented by the excellent Roy Englert, Alan Untereiner, and Leif Overvold of Robbins Russell) note, the SG’s opposition acknowledges that the Ninth Circuit, in the course of creating a broad “market participant” exemption to federal preemption, got it wrong; produced a circuit split; and badly mangled a Supreme Court precedent. Also, the SG acknowledges, the case involves a recurring question under multiple preemption regimes. Still, no cert. Why should the U.S. government defend its own statutes? American Trucking Ass’n was relisted earlier this week; my hunch is that the Court will grant.

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