The Solicitors Against the Circuit

By Jameson Payne: How the DC Circuit built up the bureaucracy, and how the state Solicitors General pared it back.

David Bazelon, longtime senior judge of the DC Circuit. Source

Editor’s note: State Capacitance is pleased to present The Solicitors Against the Circuit, a guest post by longtime friend Jameson Payne. Jameson is a graduate student at Hillsdale College's Van Andel School of Statesmanship. He formerly worked at the Heritage Foundation and New Civil Liberties Alliance.

The Solicitors Against the Circuit

Who regulates the regulators?

In the American administrative state, agencies are governed by byzantine rules. A portion of these rules are statutory, being written in laws such as the landmark Administrative Procedure Act (APA). But the larger portion is based on judicial interpretation of statutes: even the APA—a mere nine pages long!—leaves much to the discretion of judges. And in this struggle to be the master of the administrative state, one institution has long reigned supreme: the U.S. Court of Appeals for the District of Columbia—better known as the D.C. Circuit.

How did it manage to win out against other institutions to gain this supremacy? Was it due to the necessity of centralization, or perhaps to the convenience of proximity to the capital? These things helped, to be sure. But I’d like to propose that another factor first built up the Circuit’s influence and later tore it down—namely, institutional competence.

The D.C. Circuit’s bar—the advocates who practiced before it—was more competent than the Supreme Court’s bar during the twentieth century, and so the court garnered prestige and deference to its administrative-friendly judgments. This changed when, over the last few decades, an equally professional counterweight arose: the state Solicitors General. These competent lawyers generally opposed the administrative state, and were able to meet the D.C. Circuit blow-for-blow. Ultimately, this helped lead to the Circuit’s longstanding doctrines of administrative law being overruled.

The D.C. Circuit and Admin Law

As most readers are aware, Congress does not spell out how agencies should operate day-to-day, leaving them to work out the details. These agencies do so by making rules that affect policy, ranging from rules about how the agency will manage itself to rules about how it will enforce and adjudicate laws.

Over time, a set of laws and judicial precedents have emerged to control agencies, including limitations on their authority and procedural requirements that they must follow when they act. This body of law is called “administrative law,” and whoever makes this law wields immense influence over a range of policy issues, from immigration to insulin prices.

While there are some statutes that control administrative law, much is left to judicial determination. So which court decides what agencies can and cannot do? There are two basic options.

One, the traditional model, lets the various district and circuit courts throughout the US make their own precedent, which is binding only within their jurisdiction. Then, if courts disagree on an issue, it can undergo appellate review by the Circuit Courts and eventually the Supreme Court. If SCOTUS settles the issue, then it is binding nationwide. This has the downside of creating less consistent administrative law across the nation when different courts disagree, but has the benefit of fleshing out the law more comprehensively before appellate courts decide it.

The other model is to delegate administrative law to courts of specialized jurisdiction, much as bankruptcy cases are handled by specialized bankruptcy courts. This is usually done by specifying one court as a venue for all litigation done under a statute, or by giving a court the authority to issue decisions that preclude litigation in other courts. The expectation is that this court will become expert in its subject-matter area, and therefore more likely to make informed judgments. It also allows for a more uniform body of law, as there is no rival court to disagree with it.

Since the rise of agencies in the early twentieth century, Congress has opted for a mixed approach: some administrative issues have been delegated to one specialized court, while many others follow the traditional model of being heard by the regional courts throughout the US.

When Congress chooses to entrust administrative issues to a specialized court, it unsurprisingly favors the capital’s appellate court, the D.C. Circuit. With many statutes specifying the Circuit as the court-of-review, the D.C. Circuit holds a premier status in shaping administrative law for the whole nation.

Many of the most significant administrative-law developments in the 20th century trace their origin to the D.C. Circuit. The controversial practice of “universal remedies” was pioneered by the Circuit: it was issuing nationwide injunctions all the way back in the 60s, and universally vacating agency rulemaking was the Circuit’s “ordinary result” in a successful APA claim by the 80s. It also played a decisive role in expanding standing—who can challenge agency action—and ripeness—when agency action can be challenged. We even owe the infamous doctrine of Chevron deference to the Circuit’s hand. As Tom Merrill details in his book, what was originally an innocuous opinion applying routine canons of statutory interpretation was transformed, by the D.C. Circuit, into an overhaul of the relationship between courts and agencies.

The D.C. Circuit crafted, through these doctrines, an administrative law where the Circuit could aggressively set aside actions by democratically elected politicians, invite (mainly liberal) interest groups to sue agencies, and demand that other courts defer to the actions taken by these putatively expert agencies at the behest of interest groups.

Not everyone was happy with the D.C. Circuit’s preeminence and the results thereof.

The D.C. Bar: A Crash Course

Reagan’s Secretary of the Interior, James G. Watt, once lamented that “eastern judges (judges who are 'foreign' to many values of the West) are making decisions which control our destiny as a people and as a vital force in America's economy.” The D.C. Circuit had come to represent a bastion of elitism to its detractors; to its defenders, a desirable venue for efficient and centralized development of administrative law. But both its defenders and detractors could have agreed (although perhaps not happily agreed) on this: the court was highly competent.

Competence, however, means more than that the court had the best judges with the most experience. It also has to do with the quality of the bar—the people who practice before the court. It was an open secret among admin law gurus that litigation before the D.C. Circuit was generally of higher quality than even the Supreme Court. In the 1980s, D.C. Circuit Judge Wald confirmed the folk-wisdom: “[i]t has been suggested by some Supreme Court Justices in recent years that the quality of advocacy in our court generally is a match for-or even better than-that in the Supreme Court.”

Even such an important case as Roe v. Wade illustrates this: Texas was represented by assistant attorney general Jay Floyd, who opened his statement about abortion with a quip about the attractiveness of the (female) opposing counsel. Both parties then argued so poorly that Justice Blackmun cited it as a reason to rehear the case. Nor was Floyd’s disastrous performance atypical—Blackmun privately ranked all Supreme Court arguments; Floyd got a “B”.

This might come as a surprise; after all, the stakes of winning at SCOTUS are much higher, and so one would want to invest in the highest-quality advocates possible. But well into the late-twentieth century, the Supreme Court bar was not especially professional. A case would often be argued by the attorney who handled the case at trial and who then appealed the results—small town lawyers would end up at SCOTUS.

Hypothetically, the Supreme Court had rules that precluded such unqualified lawyers. But these rules were frequently waived via a grant of pro hac vice, which is when a court grants temporary admission to its bar to argue a particular case. LexisNexis indicates that motions for admission pro hac vice were far more common up through the 1970s—that means more everyday lawyers, few elite appellate litigators.

Compare this with the D.C. Circuit, whose bar professionalized much sooner. This was probably for many reasons: statutes gave the Circuit preference in agency litigation, and agencies wanted to argue on their “home turf” anyways; the capital drew ambitious political lawyers into its fold; and the list goes on. The Circuit did become notable for its expertise in administrative law, but just as importantly, so did the litigators practicing before it.

Therefore, the D.C. Circuit overtook the Supreme Court in developing administrative law. Despite SCOTUS nominally having the final say on all questions of agency power, it could only take so many cases onto its docket a year. It required a gatekeeper, and that gatekeeper was the D.C. Circuit. While SCOTUS and the Circuit often butted heads—it was overruled on numerous landmark cases—yet it silently kept up its work of reforming crucial doctrines, with the understanding that its bar was more competent to speak on such issues.

This confluence of factors—some institutional, some based on elite competence—led the D.C. Circuit to its role as preeminent overseer of the administrative state. Even when it rebelled against SCOTUS, it could often have the last laugh. As Scalia wrote after the Circuit’s tacit disobedience of Vermont Yankee v. NRDC: “the D.C. Circuit is something of a resident manager, and the Supreme Court an absentee landlord.” Sure, SCOTUS might grant certiorari, but more likely, the Circuit would have the final say. Thus, within the broad strokes painted by SCOTUS, the D.C. Circuit silently filled the interstices for decades, often with great sympathy to bureaucracy.

Revolt on the Frontier: State Solicitors General

With the Beltway’s well-organized bar and home-turf advantage, the inertia in favor of the administrative state seemed insurmountable. Major conservative public-interest groups like the Institute for Justice and the Center for Individual Rights didn’t spring up until roughly the early 90’s, by which point the Circuit’s institutional prestige was firmly entrenched. How then did they manage to successfully whittle away at the Circuit’s doctrines, culminating in the Supreme Court recently overturning Chevron?

The conservative lawyers avoided the already-hijacked federal apparatus and turned instead to state governments. Cue the state solicitors general: lawyers in state departments of justice dedicated solely to representing state interests at federal appellate courts such as the Supreme Court—interests that were, crucially, often anti-administration.

As Dan Schweitzer noted, state SG offices exploded in popularity at the turn of the twenty-first century. In the 1980s, only eight states had SGs. Today, forty-four states have one. Attending the expansion in state SG offices is a greater involvement of states in constitutional litigation more generally. As Will Baude and Sam Bray write: “[i]n just the last decade and a half, states have come to dominate the public law scene,” adding that today’s preponderance of state plaintiffs was not typical of earlier generations.

The formation of these offices pooled resources and talent that defended (often conservative) states’ prerogatives. As a result of this, the quality of legal argument at SCOTUS has improved substantially. Compare the desultory historical analysis of legal opinions from the twentieth century—often a few stray quotes from The Federalist would suffice—to the sophisticated briefs filed today. And these sophisticated briefs often aimed to roll back the worst excesses in administrative law.

The fruits of this long structural overhaul have finally come in the form of landmark, state-led cases to overturn long-standing administrative law. The chinks in Chevron’s armor began as early as 2015 in Michigan v. EPA, where, at the state of Michigan’s urging, the court tightened up how “reasonable” an interpretation had to be to receive deference. The opinion was written by Justice Scalia, who was himself instrumental in expanding Chevron as a judge on the D.C. Circuit. Later in another state-led case, West Virginia v. EPA, the court narrowed Chevron so much as to be effectively a nullity. The decision was finally overturned in Loper Bright v. Raimondo, which featured an amicus brief by eighteen state solicitors general.

Other challenges are just on the horizon. The current case about nationwide injunctions, Trump v. CASA, came up to the court as a consolidation with two other state challenges, Trump v. New Jersey and Trump v. Washington. Here, Tennessee’s Solicitor General wrote a brief which argued that nationwide injunctions violate Article III. If the Supreme Court does away with universal relief, this would signal yet another win of conservative states over the D.C. Circuit, who pioneered universal relief all the way back in the 80s.

In short, the struggle over defining the proper limits of administration offers insight into what drives legal reform. The D.C. Circuit captured high-quality legal talent, and won its reputation and power thereby. But a disaffected counter-elite accumulated over time, organized its ranks within the state solicitors general, and slowly but surely chipped away at leviathan’s armor.

To the competent go the spoils.