E. Donald ELLIOTT: The On-Going Judicial Reconsideration of the Administrative State in the U.S

The United States is in the midst of a “constitutional moment,” a neologism invented by my Yale Law School colleague Bruce Ackerman to describe the reality that changes of constitutional magnitude are sometimes made in the United States without the benefit of a formal amendment to our constitution. The big issue now is an on-going reconsideration of “the Administrative State.” That pejorative term describes the gradual migration of decision-making power away from the popularly elected Congress and into a vast bureaucracy of unelected federal officials.

Another account on debates regarding this phenomenon – by Charles Keckler – here on Constitutional Discourse addressed the issue in trying to reconcile the paradoxical nature of independent agencies as ‘reverse parliaments’. This post intends to enrich this discourse with additional viewpoints such as the delegation and the major questions doctrines and offer continued insight for European scholars and professionals into the workings of the American administrative mindset.

The overwhelming majority of policy decisions made by the national government in the U.S. today are made by administrative officials, not elected ones. For example, the Code of Federal Regulations which codifies administrative regulations is about ten times longer than the statutes passed by the Congress. Under a 1946 framework statute, the Administrative Procedure Act, these administrative “rules” have the force and effect of law. Some support this massive transfer of power away from democratically elected officials and to subject matter “experts” in the federal agencies and departments, and others contend that the value of expertise is overrated. There is no doubt, however, that the national government of the United States has gradually been transformed.  Today a powerful fourth branch that resembles Plato’s “guardians” is running the government. This “ruling class” as a practical matter enjoys life-time tenure, selects its successors and is largely immune from supervision or political control.

This fundamental transformation of the structure of national government in the United States occurred gradually over decades. However, it fundamentally changed the nature of our government. For example, rather than making controversial policy decisions, the Congress now often prefers to write vague statutory language and “delegate” power to administrators.  This practice enables politicians to take credit for addressing an issue without actually making decisions that would offend one constituency or another. To some extent, these gradual changes in the U.S. since its 18th century founding are part of a worldwide phenomenon by which more power had flowed to experts, such as those in the European Commission.

This is not the place to assess whether these changes are good or bad; that would take a book much longer than this short article.  Rather, the purpose of this article is to report on the on-going reassessment of the Administrative State by the judiciary in the United States.  This trend is just beginning and will continue for at least the next decade.  At the end, the article suggests a more productive lines of inquiry for the courts, a whole of the constitution approach that takes into account the “spirit” of the Constitution as well as its specific provisions.

How the Current Re-Examination Happened.

Early on Steve Bannon, a political adviser to the Trump Administration, promised “to deconstruct the administrative state” and Trump himself promised to “drain the swamp” of Washington bureaucrats and hangers-on of former government officials and lobbyists.  A good argument can be made that Trump fought the swamp, and the swamp won by swinging the 2020 election against him. However, due to a strange anomaly in U.S. practice, presidents only get to appoint new justices when a vacancy occurs on the Supreme Court thru death or resignation.  As a consequence, as president, Donald Trump was able to appoint three justices to the Supreme Court during his four years in office, whereas his left-leaning predecessor, President Barack Obama, was only permitted to appoint one justice despite having served for eight years, twice as long as Trump. Today our Supreme Court is divided 3-3-3, with three hard-core conservatives who claim to follow the original text and meaning of the Constitution, three Burkean conservatives who are more pragmatic in accepting some evolution beyond the Constitution’s original meaning and three liberals appointed by Democrats who follow their party’s line.  Six of the sitting justices have indicated a willingness to reassess the administrative state, and only four are require to agree to hear a case and five to decide it.  Moreover, according to press reports, if Mr. Trump is re-elected in 2024, he plans to implement an ambitious program to bring under Administrative State under Presidential control. Finally, the Supreme Court recently ruled that challenges to the structure of administrative agencies in the can be brought in court without going through the entire administrative process first, which can take 5 years or more and cost a great deal of money.  This ruling will greatly reduce the costs of bringing such challenges to court, and can be expected to unleash a flurry of cases challenging various structural aspects of the administrative state.

The Delegation Doctrine

The mainstay of conservative opposition to the administrative state is the so-called “delegation doctrine.”  Conservatives main argument is usually based on Article I, section 1 of the Constitution which states that “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” For some, this means that all delegations of power to administrative officers to make legally enforceable policy decisions are unconstitutional.

However, it is debatable whether a prohibition on delegation of legislative power was actually the original intention of the founding generation. On the contrary, the Constitution contains no explicit text prohibiting delegations of legislative power.  That is a major drawback to making a non-delegation argument the mainstay for constitutional analysis in an era in which all of our judges claim to be textualists. Rather, the argument for saying that the vesting clause prohibits delegation is based largely on an historical analogy to private principal-agent law, in which an agent is not allowed to subdelegate work to someone other than the person that the principle hired without consent of the principle.

Regardless of its historical meaning, over time the doctrine has evolved. What was originally called “the non-delegation” doctrine has gradually morphed to become “the delegation doctrine,” which holds that Congress MAY indeed delegate some of its legislative powers to administrative decision-makers provided that Congress makes the major decisions and leaves to administrators merely “filing in the details.” This supposed division of authority is implemented, if at all, thru the concept that Congress must lay down “intelligible principles” to cabin and guide administrative discretion. However, as Dean Ronald Cass has pointed out in his article, the Supreme Court’s decision in American Trucking upholding a statute with little or no guidance raises serious questions as to whether the intelligent principles version of delegation doctrine really has any bite.

In any case, the delegation doctrine has become the creation myth for the administrative state.  It is taught in all administrative law classes in U.S. law schools. As a result, for many U.S. lawyers, consideration of reining in the administrative state begins and ends with the delegation doctrine.  This is unfortunate, because the delegation doctrine in its various forms proves either too much or too little.  Because the delegation doctrine focuses only on the terms of the initial statutory mandate to an agency, it does little or nothing to rein in a variety of other abuses by the administrative state.[1] In the final section of this article, a broader approach is proposed that requires the courts to consider whether delegations are consistent with the constitutional design generally, not merely whether Congress has provided intelligible principles to limit the agency’s substantive authority.

The Major Questions Doctrine

In recent years, the Supreme Court has developed – some critics would say made up out of whole cloth – “the major questions doctrine.”  This doctrine is at once both broader and narrower than classic delegation doctrine.  It is narrower, in the sense that it does not apply to all legislative decisions, but only a subset of “major questions,” which the Court has struggled to define in terms of economic impact and history.  Chief Justice Roberts was at pains in one of the most significant major questions doctrine cases, West Virginia v. EPA, to point out that the doctrine did not apply to circumstances in which “an agency was acting pursuant to a clear delegation” from Congress.  Thus, Chief Justice Robert’s version of the major questions doctrine recognizes the legitimacy of broad delegations of policy decisions to administrative decisionmakers, provided that Congress is clear about its intention to delegate the decision to the agency, as for example thru legislative history or statutory language.  However, If the Court decides that a “major question” is indeed involved, “intelligible principles” are not enough; Congress must either decide the policy issue itself or clearly indicate its intention to delegate the policy decision to an agency.

On the other hand, whereas traditional delegation doctrine law results in invalidating the statutory section in question as unconstitutional if Congress has not provided intelligible principles, the major questions doctrine only holds the agency’s decision invalid until Congress enacts legislation to give the agency or the Executive branch the powers that it had claimed.  Thus, the major questions doctrine would turn the process in the U.S. on major policy questions into one more like that in the European Union, in which experts in the Commission propose legislation that must then be enacted by the parliament to go into effect.

The Supreme Court has struggled to define exactly what qualifies as a “major question” – and as a result, many lower courts are finding major questions in many administrative determinations that they do not like.  However, most, if not all, of the Supreme Court’s major questions doctrine cases involve a common pattern: first the executive has requested legislation, but when Congress refused to pass clear statutory authority, the executive then claimed the authority to go ahead by interpreting existing law creatively as allowing what Congress had refused to pass explicitly.

A good example is President Biden’s attempt to “forgive” $400 billion of student education loans on the eve of the 2022 congressional elections, even though he and Speaker of the House Nancy Pelosi had both said he lacked existing statutory authority to do so. Perhaps the best explanation to date of the underlying basis for the major questions doctrine is articulated in Justice Barrett’s concluding opinion in the Supreme Court case holding that President Biden lacked the power to forgive student debt. Justice Barrett argues that the major questions doctrine is a rule of construction based on context.   However, she erroneously assumes that Congress would want “to make the big-time policy calls itself, rather than pawning them off to another branch” when actually Congress often wishes to avoid controversy – or cannot get sufficient majorities to adopt a solution.  In actuality, the major questions doctrine is an attempt by the courts to force Congress to make difficult decisions when it is reluctant to do so.  This is sometimes called a “remand to the legislature.” However, many, including the present author, are skeptical that the courts will be successful in requiring Congress to make difficult decisions but at least administrators will be unable to implement policies that Congress is unwilling to pass.

The Unitary Executive

Another active area of litigation involves the question of the extent to which the President, as head of the executive branch, may fire government officials at will.  This issue has been hotly debated under the rubric of “the unitary executive theory” since the decision in Humphrey‘s Executor, a 1935 case that held that Congress may insulate agencies exercising “quasi-legislative or quasi-judicial” functions from at will firing by the President. Recently, for example, a court just below the Supreme Court, the Fifth Circuit Court of Appeals, ruled that administrative law judges at the Securities and Exchange Commission could not be insulated from at will firing by the president. The Supreme Court has agreed to review that case in its next term, and its decision is likely to presage a reconsideration of the concept that some agencies are “independent” of presidential supervision and control.

An even more incendiary aspect of the same Fifth Circuit decision held that the SEC’s in house system of adjudication denies accused persons a right to trial by jury. This is a key aspect of Columbia Law School professor Philip Hamburger’s argument that the administrative state denies defendants their historic rights in the Anglo-American tradition going back to 1688.[2]

Should Courts or Administrators Decide What Statutes Mean?

Under a 1984 Supreme Court decision, Chevron v. NRDC, courts are supposed to “defer” to interpretations by administrative agencies of the language of the statutes that they administer, even if the agency’s interpretation is not the natural reading of the language, if “Congress has not directly addressed the precise question at issue.” This Chevron doctrine has greatly expanded the power of administrative agencies and the executive branch at the expense of Congress and the courts, but it has been criticized as undermining the duty of the courts to say what the law is.  The Supreme Court has agreed to hear a case in its next term to either overrule or clarify the Chevron doctrine.

The “Necessary and Proper” Clause and “the Spirit of the Constitution.”

While the current judicial reconsideration of the administrative state is occurring on several fronts, as detailed above, to date it is piecemeal in the sense that it involves particular provisions of the Constitution.  The original sin that created uncertainty about the judicial role in assessing the structure of administrative agencies goes back to a seminal 1819 Supreme Court case, McCullough v. Maryland. That case involved the question of whether the federal government could create new institutions not specified in the Constitution, in that case a bank chartered by the national rather than a state government.  In a famous opinion by our greatest chief justice, John Marshall, the Court held that under the “Necessary and Proper” Clause of the Constitution, the national government did indeed have the power to create new institutions.  However, since the argument against the bank was that it was not “necessary,” most of the opinion dealt with watering down the “necessary” language to encompass institutions that are merely desirable or advantageous and not absolutely required.   However, in passing, the Court did remark that in order to be “proper,” new institutions must be consistent with the “spirit of the Constitution” as well as the letter of the law:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.” 

For many years, however, the “proper” part of “necessary and proper” was largely forgotten. Chief Justice John Roberts attempted to correct this oversight in his opinion upholding the federal government’s take-over of the health care system by recovering the lost meaning of “proper”:

As our jurisprudence under the Necessary and Proper Clause has developed, we have been very deferential to Congress’s determination that a regulation is “necessary.” … But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution. Such laws, which are not “consist[ent] with the letter and spirit of the constitution,” McCulloch, supra, at 421, are notproper [means] for carrying into Execution” Congress’s enumerated powers.

The “spirit of the Constitution” test requires courts to consider more broadly whether the structure and functions of new institutions are consistent with the overall design features of the Constitution.  For example, one of the most thoughtful drafters of the Constitution, James Madison, opined that a key feature of our Constitution is the separation of powers into three branches:

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” 

However, today many administrative agencies do exercise all three kinds of power, legislative, executive and judicial. Many of the architects of the administrative state such as Woodrow Wilson and James Landis[3] thought that separation of powers was an inefficient relic and proudly proclaimed that administrative agencies should exercise all three kinds of powers. No specific text in the Constitution prohibits this design, although it is inconsistent with the overall design of the Constitution itself which divides power to protect liberty.

It remains to be seen whether the on-going judicial reconsideration of the structure of the administrative state will go so far as to require that administrative powers must be consistent with the overall design features immanent in the Constitution, which Chief Justice Marshall called “the spirit of the Constitution,” or merely its specific provisions.

[1] See generally Philip Hamburger, Is Administrative Law Unlawful (Chicago, Illinois: The University of Chicago Press, 2014); Philip Hamburger, The Administrative Threat (New York: Encounter Books, 2017).  For a critical review, see Adrian Vermeule, ‘No’ Review of Philip Hamburger, ‘Is Administrative Law Unlawful?’, 93 Tex. L. Rev. 1547 (2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2488724.

[2] See Hamburger, supra note 1.

[3] See James Landis, The Administrative Process 2 (New Haven: Yale Press, 1938)(“The insistence upon compartmentalization of power along triadic lines gave way in the nineteenth century to the exigencies of governance.  …[A]gencies were created whose functions embraced the three aspects of government.”)

E. Donald Elliott is a Florence Rogatz Visiting Professor of Law, Yale Law School; Distinguished Adjunct Professor, Antonin Scalia Law School; Senior Fellow, Administrative Conference of the United States. Acknowledgement: “I wish to thank the participants in the 2023 Alyeska Colloquium of the Judge Douglas H. Ginsburg Judicial Colloquium Series sponsored by the Law and Economics Center of the Antonin Scalia Law School of George Mason University for thoughtful discussion of a precursor to this article.  Of course, responsibility for the errors that remain is mine alone.”

Lilla Nóra KISS: What Brexit Can Teach the US about the Importance of Civility

Rhetorical Overkill Has Consequences

“Elections have consequences,” Barack Obama famously said. Words also have consequences. Suppose your long-time spouse were to say to you one not-so-fine morning, “I am leaving you. The movers are coming tomorrow.”  Even if he stuck around, his words would have consequences. They would cut you to the quick and tell you that the committed relationship that you thought you had no longer exists. “I’m not upset that you lied to me,” Nietzsche wrote. “I’m upset that from now on, I can’t believe you.” Words, once spoken, cannot be taken back, and they have consequences.

Like angry words spoken in a marriage, the words we choose also matter in politics.  When political partisans accuse one another of attempting to overthrow democracy, being white supremacists, or being an agent for a foreign enemy, their effect is very different from when they say I disagree with you on this or that issue of the day. Unprecedentedly, extreme communication led the US Supreme Court accused to be “at war with democracy.” Although the polite alternative posits that we are still engaged in a common enterprise in which dialogue and compromise are possible, the over-the-top accusations imply that the only solution is to either separate or eradicate our enemies. In recent days, the disrespectful attack of the SCOTUS serves as a great example of rhetorical overkill. Instigation of society with a leaked opinion draft is more than a wrong way to criticize the Supreme Court. The fundamental problem arises because the masses criticize a not-yet-made decision on a moral basis. Consequently, as Justice Clarence Thomas evaluated the situation, the most fundamental institution designed to ensure legal certainty is ‘threatened to be destroyed’.

Extreme communication promoted by media and echoed by most politicians falsely entitles citizens to criticize institutions and distrust their legitimacy. When the patient feels more confident in providing a diagnosis than the doctor, when the layman is drawing pseudo-legal arguments accusing the lack of competency and capability of the Supreme Court, then the cart has most likely been put in front of the horse.

Another good example of rhetorical overkill is the recent controversy over a decision by the McMinn Country, Tennessee school board to remove the graphic novel Maus about the Holocaust from the 8th-grade curriculum on account of the book’s “use of profanity and nudity.”  Rather than point out with genial humor the fact that most 8th graders could probably teach their elders a thing or two about profanity and nudity, as Mark Twain most likely would have done, author Art Spiegelman took to the internet to denounce the decision as “a breath of autocracy and fascism,” and to attack the local school board not for poor judgment but as evil people: “There’s only one kind of people who would vote to ban Maus, whatever they are calling themselves these days.” It should also be noted that the ensuing controversy catapulted the book to the top of Amazon’s bestseller list. 

On the one hand, social media and the internet are undoubtedly partially to blame for declining civility in public speech in the United States. The internet presents us with a confusing welter of voices, sometimes called “information overload,” a term coined by political scientist Bertram Gross in 1964. To stand out, people sometimes “yell louder” by making hyperbolic charges to attract attention. “Yelling louder” works even more effectively if those who intend to influence public opinion grab on to a moral issue. The point is to cause a kind of “short circuit” in rational thinking. Influencers (mainly conscious politicians) use emotions to capture the audience. Emotions cover the overall meaning of the message but do not consider the nuances. Generalization is a handy tool for labeling topics as “good” or “bad”, “acceptable” or “unacceptable.”

On the other hand, politicians intentionally apply extreme rhetoric, which has polarized public discourse in many countries in recent years. By doing so, classical arguments on diverse general issues (e.g., education, migration) are now ultimately good or ultimately bad instead of being subjects of broad civil dialogue. Polarization of opinions results from this simplified, easy-to-consume communication, which thematizes the ‘current’. Usually, the politicized policies are related to basic needs (security, certainty); therefore, citizens consider it natural to care about them. These questions bring people out to vote (or to protest). Another feature of these topics is that the related arguments are either unilaterally “liberal” or unilaterally “conservative,” which generate seemingly irreconcilable contradictions on the surface. These contradictions may not exist on the policy level, or it is relatively easy to place them on the same page and find a healthy compromise. However, on the political level, the aim is to deepen the differences, distort the debate, and finally, divide the society. The wars of values cause irrevocable harm to individual development and, in the long run, to the society at large as well. The artificially created “love-hate axis” breaks families, creates an isolated work environment, and influences career paths by motivating young people to become opportunists and choose their ‘site’. As a result, there is no need for public discourse anymore. Does it resemble Marxist totalitarianism? 

In Europe, the same dynamic led up to “Brexit” not so long ago. If the United States wants to avoid a similar breakup of the federal union, it should take notes on how to avoid irresponsible and destructive rhetoric from its European cousins. Fortunately, the Brexit campaign is a teachable example of polarization. And it goes like this: (1) increase the significance of singular events, (2) link them to other events happening nearly at the same time and in close proximity, geographically speaking, (3) draw far-reaching conclusions from these, (4) depict scenarios for the future, and (5) reach a large number of people, such as through the incorporation of social media platforms. Moreover, the Brexit campaigners built a lot on emotions. On the Vote Leave web page, fear and insecurity were represented by the threats of immigration and permeable borders within the EU. After Brexit was done, the campaigners endorsed citizens with “positive confirmation”. The role of the positive feedback is selfish: “keeping the herd together.” Politicians choose their words intentionally. They may forget that hate, anger, and fear–just like in a marriage–lead to destruction. One does not have to be a marriage counselor to know that it is almost impossible to fight with emotions; it is no different in politics either. Academia and journalism have a significant role in maintaining a healthy public discourse. Experts have a responsibility to form the public opinion but without distorting or overinfluencing it. Events like Brexit show the power of words. The Brexit Party (now Reform UK) understood the significance of emotions in individual decision-making. The ‘Take back Control’ campaign showed that emotions work.

Although scientists like doing experiments to see if their hypotheses work in practice, they do not try everything out because they consider the risks and possible harms. Contrarily, as politicians plan for electoral cycles, they consider quick results, regardless of the risks. Drumming up votes has never been so easy like it is now. Ever since social media platforms emerged and became spiritual nourishment for the masses, politicians only need to feed the two-pole society with morally consumable news. 

The division of the society is simply dangerous. Similarly to marriage, using painful arguments in politics leads to divorce. In equal relationships, such as in marriages and among political allies, unity built upon emotions, interests, or both shall govern. Spouses have a natural need to rely on each other and unite their forces to achieve common goals; it is the same in politics. The USA understood the power of being united first; later, Europe followed its example after the second World War. Brexit shows, however, that unity is fragile and fleeting. Partisans turning their backs on rationality and descending into invective communication often leads to irrevocable and unforeseeable consequences. Such could very well be the destruction of the authority of the US Supreme Court.

So, what may Brexit teach the USA then? Lacking public discourse and polarizing opinions lead to divorce. The SCOTUS incident arguably shows that the US is closer to a breakup than many US experts seem to realize. Moreover, those pushing divisive issues should try to put them in perspective by asking whether they believe they are important enough to risk a national breakup over them. Every ‘current’ topic is essential, but it is at least as vital as how we express our disagreements. As we know, “It’s not about what you say; it’s about how you say it!” 

What is the solution to avoid breakups? Unfortunately, it is not entirely possible to do so. But maintaining mutual respect and civility in communication could be the first step. Marriage counselors teach couples how to navigate their disagreements. One of their key principles is not to escalate disagreements beyond the particular issue into an attack on the other person as an evil person. That move turns the controversy of the moment into something that cannot be resolved, except by going your separate ways. Even if state-level allies and marriages are different, there are some similarities. For instance, both are designed for long (or rather unlimited) durations. A potential solution could be the introduction of limited-term relations with revision clauses allowing exiting for the parties every 5-10 years. Another solution could be to apply codes of conduct. The soft tools would give a frame for the public (and private) discourse to maintain civility. Modern, private actor-based solutions are also available and could work. Social media platforms are trying to police extreme rhetoric on their platforms upon their self-regulatory guides. Employing moderators to maintain civility is a unique solution, but strong arguments are against it: moderators should be neutral, but since they are humans, the mistake is already codified in the system. Neutrally thinking human beings do not exist, but prejudices and altering opinions do. Therefore, applying codes of conduct could facilitate civil dialogue in our relationships. Incorporating revision clauses for long-term cooperation could encourage the parties to stay civil if they want to continue and motivate them to seek mutual advantages. At the same time, limited terms enable parties to exit without further consequences if their relationship is no longer sustainable.

If the United States wants to stay “married,” it had better re-learn the lesson of how to disagree with one another without turning the politics into a fight to the death. Divorce can only lead to one thing: going on separate ways, with the idea of the partnership slowly drifting into oblivion.

Lilla Nóra Kiss, PhD, visiting scholar and adjunct faculty at Antonin Scalia Law School, George Mason University. Lilla is the co-founder of Freedom and Identity in Central Europe (FICE) working group. Email: lkiss@gmu.edu

Mark David HALL: ‘Christian Nationalism’: An Existential Threat to America and the World?[1]

In the traditional telling of the tale, an acorn falls on Chicken Little’s head and she runs around wildly telling all who will listen that the sky is falling. Since January 6, 2020, a host of polemicists and a few social scientists have been loudly proclaiming that Christian nationalism may cause the collapse of America’s constitutional order. Recently, some authors have even contended that American Christian nationalists are fomenting “civil wars across the globe.” National and international critics have warned of the dangers of Christian nationalism in European countries including Italy, Poland, and Hungary. In this essay, I explore American Christian nationalism and conclude that most—perhaps all–critics of Christian nationalism should largely be dismissed as contemporary manifestations of Chicken Little.

The sociologist Andrew Whitehead recently asserted on Twitter that “Christian nationalism is an existential threat to American democracy and the Christian church in the United States.” Similarly, Andrew Seidel, vice president of Americans United for Separation of Church and State, claims that it is an “existential threat to a government of the people, for the people, and by the people.” In The Founding Myth: Why Christian Nationalism is Un-American, the same author explains that Christian nationalists seek to codify “Christian privilege in the law, favoring Christians above others [and] disfavor the non-religious, non-Christians, and minorities.”

Amanda Tyler, president of the Baptist Joint Committee for Religious Liberty, another organization dedicated to the separation of church and state, more modestly contends that Christian nationalism is merely the “single biggest threat to America’s religious liberty.”  Finally, and many other examples could be given, Philip S. Gorski and Samuel L. Perry inform us that white Christian nationalism is a “threat to American democracy.”  (Note the addition of “white.” As Jemar Tisby explains elsewhere, African-Americans bring their faith into the public square in helpful, inclusive ways. Christian nationalism, it would seem, is only problematic if its adherents are white).

Christian nationalism, as defined by its critics, is an ugly phenomenon. In Taking America Back for God, Andrew Whitehead and Samuel Perry explain that it is “an ideology that idealizes and advocates a fusion of American civic life with a particular type of Christian identity and culture” that includes assumptions of “nativism, white supremacy, patriarchy and heteronormativity, along with divine sanction for authoritarian control and militarism.”  

It is not unreasonable to fear that people who embrace the ideology described by Whitehead and Perry pose a threat to liberal democracy, but are there enough of them to make a difference?  Whitehead and Perry answer this question with a resounding “yes.” According to them, 51.9% of Americans partially or wholly support Christian nationalism (respectively labeled by them as Accommodators (32.1%) or Ambassadors (19.8%)). These figures include the 65% of African-Americans who are Christian nationalists but, like Tisby, Whitehead and Perry explain that these are goodChristian nationalists who need not be a cause for concern (it is unclear if Hispanic and Asian Christian nationalists are as morally pure as African-Americans).

As I have explained elsewhere, there are excellent reasons to be skeptical about the statements Whitehead and Perry use to measure Christian nationalism. They may be interpreted in different ways, and three of the six simply measure whether one is committed to the strict separation of church and state. One may reasonably conclude, for instance, that religious monuments should be permitted to remain on public land, that voluntary prayer should be permitted in public schools, and that states should not be able to discriminate against religious institutions and not be Christian nationalist. Separationists like Andrew Seidel and Amanda Tyler clearly favor a public square stripped of religious images and government discrimination against religious institutions and individuals, but many Americans (and a majority of Supreme Court Justices, including, in some cases, Stephen Breyer and Elena Kagan) do not.[2]

Among the most far-fetched assertions made by critics of American Christian nationalism is that the modern American manifestation of the movement can be traced to Rousas John Rushdoony (1916-2001). This obscure Presbyterian minister did, in fact, contend that Christians should actively reconstruct society along thoroughly Christian lines, a project that resulted in Rushdoony and his followers being labeled Reconstructionists or Dominionists. 

Critics of Christian nationalism inflate Rushdoony’s importance because he advocated views that may reasonably be interpreted as racist and sexist, and because he argued that Christian societies should punish eighteen offenses with death, including witchcraft, “incorrigible juvenile delinquency,” and homosexual activities by men (but not women).  In other words, he advocated something approximating the toxic mix described by Whitehead and Perry. I have shown elsewhere that reports of Rushdoony’s influence are grossly exaggerated, but this does not stop even serious scholars from asserting that he was influential, as Philip S. Gorski and Samuel L. Perry do in their 2022 book The Flag and the Cross.   

Most of the literature on Christian nationalism in the United States is polemical, and much of it is motivated by a progressive political agenda. This is most evident in the polemical works, but even social scientists like Whitehead and Perry tip their hand when they characterize pro-life Americans as simply being committed to“male authority over women’s bodies” and explain that Christian nationalists are redefining religious liberty to mean something more than freedom to worship.  Whatever one’s position on these issues, fair consideration of pro-life Americans reveals that they oppose abortion because they are concerned with protecting innocent human life. And Americans on both the right and the left have long understood religious liberty to protect more than the “freedom to worship.” After all, the First Amendment protects the “free exercise of religion.”

Critics of Christian nationalism are not against some Christians bringing their faith into the public square; indeed, they encourage those advocating progressive causes to do so. But if someone is motivated by faith to oppose progressive ideas or support conservative ones, he or she is a Christian nationalist who poses an existential threat to the nation.

Almost all of the literature on American Christian nationalism vastly exaggerates the number of citizens who embrace the ideology and the extent to which it threatens America’s constitutional order. But that does not mean that Christian nationalism has not existed throughout American history or that it has not been harmful. Thus, it stands to reason that we provide a short overview of the American literature of Christian nationalism, and try and refute those allegations that do not correspond with the arguments above presented.

Paul D. Miller, a professor at Georgetown and author of The Religion of American Greatness: What’s Wrong with Christian Nationalism, has described most of the existing works on Christian nationalism as “rather extreme and almost comical examples of beating up on straw men—or would be, if they weren’t also fear-mongering scurrilous libel masquerading as scholarship.” There are also a handful of books written by academics that make a good faith attempt to understand Christian nationalism in America. In addition to Miller’s book, these include Andrew Whitehead and Samuel Perry’s Taking America Back for God and Philip Gorski and Samuel Perry’s The Flag and the Cross – both already mentioned above.

In my previous writings on the subject, I expressed dissatisfaction with current definitions and the authors’ assessments of the “threat” that Christian nationalism poses to the country. But I never deny that American Christian nationalism exists and is problematic. In the United States, Christian nationalism is best understood as the view that the country was founded as a Christian nation and that the federal government should protect and promote Christianity in special ways. Christian nationalists often believe that other faiths should be tolerated, but that the national government does not need to treat all religions equally.

Earlier attempts to measure American Christian nationalism conflate it with lack of support for the strict separation of church and state. But, one can support religious exemptions, religious monuments on public land, and even voluntary student prayer in public schools without being a Christian nationalist—at least as I define the concept.  The following three statements in a recent Pew survey do a better job of measuring American Christian nationalism:

  1. The United States Constitution was

(a) Inspired by God, reflects God’s vision for America (15%)

(b) Written by humans and reflects their vision, not necessarily God’s vision (67%)

(c) Neither/no opinion/refused (15%)

2. [The] Federal government should

(a) Declare U.S. a Christian nation (15%)

(b) Never declare any religion as official religion of U.S. (69%)

(c) Neither/no opinion/refused (17%)

3. Public school teachers should

(a) Be allowed to lead students in Christian prayers (30%)

(b) Not be allowed to lead students in any kind of prayers (46%)

(c) Neither/no opinion/refused (24%)

If we average the percentage of Americans who agree with each statement, we can estimate that roughly 20% of Americans are Christian nationalists. Although I personally disagree with all three statements, I am not terribly troubled by those who agree with them. 

Consider the first statement. I love the Constitution and believe that many of its authors were influenced by Christian ideas, but I am not prepared to say that it was “inspired by God.” Perhaps it was. How are we to know?

For the federal government to declare the U.S. ‘a Christian nation’ would be imprudent and off-putting to the 37% of Americans who do not identify themselves as Christian, but it is not clear that these citizens would be harmed in any material way. Currently, every American state constitution references the deity (see: Pew Research, 2017), and in the context in which they were written there leaves room for little doubt that they reference the Christian God. For instance, the third paragraph in Massachusetts constitution reads: 

“We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.”

If Massachusetts were to rewrite its constitution tomorrow, I would recommend removing this language because what was completely inoffensive in 1780 may be divisive today. But all Americans live under state constitutions with such language and enjoy religious liberty and are treated with equality. Should the national government declare America to be a Christian nation, there is little reason to think this would change.

It is not at all clear that agreement with the first statement above has any relevance for law and public policy, and in the unlikely event that the national government declared the United States to be a Christian nation and allowed public school teachers to lead children in prayer, the harms would be minimal. 

Again, there is no denying that such Christian nationalism exists, but it does not pose an existential threat to America that its critics claim. Nor are there good reasons to think it poses a danger to constitutional democracy around the globe. Critics who claim it does are simply parroting the American Chicken Littles who have written so breathlessly about the phenomenon. 

Mark David HALL is a Professor in Regent University’s Robertson School of Government and a Senior Fellow with the Center for Religion, Culture and Democracy.  His most recent book is Proclaim Liberty Throughout All the Land: How Christianity has Advanced Freedom and Equality for All Americans.  

[1] Portions of this article were originally published by Discourse Magazine.


Charles KECKLER: Independent Agencies as Reverse Parliaments: A Reconciliation of Paradoxes

At times, European constitutional discourse contributes to American discussions about the administrative state and looks at the work of independent agencies and similar institutions. Offering an American point of view of this field inspired by European institutions is not only relevant to European constitutional discourse, but useful in addressing many of the issues Europe is expected to tackle in the future. This piece serves to start a conversation on the topic of independent regulatory agencies, and an argument for why they should be led by commissions, multipartisan in nature, but with a majority and chair in alignment with the current government.

The independent agency (in general) is the most significant alternative method of conducting executive activities in a government, standing in distinction to an “ordinary” hierarchy of agents reaching back to the chief executive. Unlike the chief executive elected by the people and thereby holding democratic legitimacy, an independent agency is generally led by officials who are appointed. Indeed, the independent agency generally has plural officials, not a singular head, and this plurality must now be considered a constitutional requirement (in America) under the Supreme Court’s ruling in Seila Law.[1] Moreover, it is commonly (although not universally) the case that the board, commission, or other plural leadership group is comprised of members from multiple political parties. Some members, notably, will share partisan affiliation with the chief executive in charge, and some will not; in certain circumstances, the agency may find itself for a time still in control of the opposition or deadlocked between the parties. Finally, it is common to speak more precisely of independent regulatory agencies, because this is most typical task assigned to the independent agency – that of crafting rules of general effect at a level nominally below that of legislation yet with the same legal force and often with even greater impact.

None of the elements of this suite of features is, I would argue, accidental – they cohere together in that the structure of the organizational model chosen matches its core intended quasi-legislative function. But the independent regulatory agency is an institution that arose outside of the letter of the Constitution, and sits uneasily within it. Its very name bespeaks its paradoxes. It is “independent,” but of whom? If it is of the Chief Executive, for whom then it is an agency? This presents a key problem of legitimacy, because it is the President who is elected and therefore any independence from the electorate – even at one remove – takes away the imprimatur of the people’s consent from the agency.  The election of the executive is tied to the people’s choice of a plan and agenda; but his or her plan (and thus their choice) is fatally compromised by the presence of an executive element outside presidential control. Presidentialists who support the unitary executive theory consider the division of authority created by independence flatly unconstitutional.[2] Under this theory, moreover, it seems particularly puzzling (and constitutionally dubious) that a newly-elected chief executive must govern through members of an opposition party the voters have just rejected, through semi-autonomous commissions led in part by political opponents, now purportedly his or her subordinates.[3] 

Perhaps less commented upon – simply because it has so long been acceded to – is the ambiguous functional role of the independent regulatory agency. From a practical point of view, the broad, consequential rules developed by any executive agency, backed by force of law, constitute the functional equivalent of legislation and therefore compete with (if not actually usurp) the role of a legislature.[4] The typical hierarchical rules-issuing executive agency, with its single head and single-party leadership is, in structural form quite distinct from the form almost universally expected of a legislature, which normally and normatively consists of a plural body representing different interests and viewpoints. The independent regulatory agency, for all its flaws, however, more closely resembles in design a ‘miniature legislature’. Once this is recognized as representing a valid if undertheorized intuition about the kind of institution best suited to make rules (rather than simply execute them), the constitutional tension created by housing quasi-legislative activity within the executive provides a key insight into how to reconceive and thus resolve several of the puzzles about the independent agency as an institutional form.

Especially since the New Deal, there has been a long struggle over the proper constitutional role for the legislative power exerted by the Executive Branch, and especially by the President. The debate over the independent agencies is an important part, but only a part, of an extended process of controversy and compromise, and attempts by our institutions to reconcile the demands on a modern national government for creative action and adaptation with a constitution that contemplated almost no legislative authority for the executive. In particular, it has been the role of the Supreme Court, as the arbiter between legislature and executive, to put some restraints on the tendency of Presidents to act in place of, in lieu of, or in even in spite of Congressional action which could accomplish the same aims. As Justice Jackson put it:

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.[5]

The independent agencies, although in effect making law within the Executive, at their best can preserve what Jackson thought essential to free government, aspects of parliamentary deliberation in their legislative rulemaking. Here, I briefly outline a normative theory that extends the analogy to parliamentary systems and suggests a single reform to the independent agency which can address the most salient concerns about being forced to use partisan opponents as agents, and about the discoordination of executive plans raised by advocates of the unitary executive.

An actual Westminster-style parliament successfully blends the legislative and executive functions, although not without tensions and complexities in the field of ‘fusion of powers’.[6] At the most basic level, this is accomplished by “the government” – that is to say, the executive power – coming into being and deriving its legitimate authority from its command of a working majority in the legislature. In Britain, for example, when a new majority takes legislative power in the House of Commons, select members of this majority take subsidiary Cabinet roles as principal officers at the heads of the executive departments, with one becoming Prime Minister or chief executive.[7] To state the obvious, this tight connection provides coordination between the executive and legislative policy agenda, and assures that the terms of office and partisan alignment of these two functions will match.

The Founding era naturally was familiar with parliamentary systems – more familiar, indeed, than with the system of separated and interlocking powers that they were creating.[8] For a variety of reasons, the constitutional convention ended up rejecting a parliamentary system (in the form of a president appointed by the congressional majority), although the question was a much closer one than is commonly understood.[9] But since that time, the growth of the administrative state has to some extent created a convergence at the functional level. For matters within the jurisdictions of the bipartisan, multimember independent agencies, quasi-legislative activities take place within the executive through what are structurally quasi-legislatures. These need a level of autonomy in their decisions, but ideally should be in general coordination with the President having legitimate constitutional authority over all executive branch officials, and with the policy program the electorate has empowered him or her to enact.

The British executive establishment and the Prime Minister in particular derives authority from the Parliament elected by the people. Under a similar rationale, but flowing in the opposite direction, the quasi-legislatures of the independent regulatory agencies can be perceived as deriving their authority from the President elected by the people. In effect, the ideal regulatory commission is a kind of “reverse parliament” – a legislature (albeit one with a delimited scope) which comes into being when an executive comes into power.[10] A key implication of this theoretical reconstruction of the independent commission is that, like the British Cabinet, it should reflect the democratic choices embodied in the elected institution from which it derives its authority, although that authority can remain distinct.

From this follows logically an acceptance of the most fundamental argument against opposition party members: that a President should not have to depend on the political opposition to carry out the activities within the Executive Branch. This does not imply a requirement that everyone other than a member of the President’s party should be purged from leadership of an independent agency. However, both the administrative capacity of the President and his constitutional ability to assure faithful execution reach a key inflection point when he or she commands a majority of the commission in question. Moreover, this alignment is what creates democratic legitimacy for the commission’s authority and autonomy, tying its exercise of governmental powers back to the choice of the electorate. Under the reverse parliament model, just as when in Britain a new parliamentary majority creates an executive, in the American administrative state a new executive should generate a new commission majority.

If this model were carried out, it would also address the key and most legitimate demand of presidentialists and unitary executive theorists, that a President have the facility to coordinate the activities he or she has been elected to lead, and be able to execute the program which was presumably the basis of that election. With a majority in place at or near the time the new President comes into office, it becomes possible for the President to effectively transmit his or her proposals to the relevant agencies with a reasonable expectation of them being considered and implemented in conjunction with the rest of the Executive Branch. He or she should not be compelled to wait for years for action based on the adventitious expiration of fixed terms or fortunate resignations. The presidential program would be subject to debate within the commissions, because they would maintain bipartisan membership, and would benefit from the expertise derived from continuity of members’ service, because only members sufficient to form a majority (usually just one) would need be replaced. But a proposal would not be dead on arrival due to overlapping officer terms that have little constitutional weight, and which only serve to exacerbate the constitutional tensions inherent in the independent agency system.

The most efficient way to put the reverse parliament theory into practice is to tie the terms of commission chairmen – but not commission members generally – to Presidential terms, or else make chairs (and only them) removable at will. For some agencies, courts may be able to judicially interpret provisions allowing Presidential selection of the chair to achieve this effect,[11] especially where the statute does not have explicit protection for agency leadership and the “independence” of the agency is based on judicial inference (usually derived from the presence of a bipartisan commission structure). Creating a new background norm of the relations between agencies and Presidents would alter what the Court has until now taken to be the implication from the organizational commission form, at least with regard to the chairs of commissions. The result would be that the judiciary would cease to assume any removal protection or independence for chairs, once a change in the partisan control of the executive branch occurs. The better solution, however, required in many circumstances and more appropriate in all, would be for Congress to pass a straightforward law that aligns the terms of office for commission chairman with the date of the presidential inauguration, putting in place a rule applicable across all the independent agencies.

Note that this does not change the presence or validity of the only-for-cause removal restriction, as such, for any independent agency director, including the chairs. Once appointed, chairs would possess protection, but their term and thus appointment are tied back to the presidential authority. Once their term expires, chairs could continue to serve until replaced (for continuity or to assist during periods of presidential transition). But they would enter into what is called “holdover” status, and become removable even if they had possessed removal protection while serving their term.[12] Knowing this, many chairs likely would resign, but if they refused to do so, they could be legally removed without demonstrating the removal need be one undertaken for cause. As a consequence, new Presidents could have the opportunity to select leadership at the time they are forming their government in general, and avoid the delays and policy asynchrony that should trouble advocates of a strong and responsible executive.

At the same time, this proposal, and the model from which it derives, conserves the core features of the independent agency as it has developed in American law, and permits it to continue as a second-best accommodation to the growth of the administrative state and executive legislation. Under this clarified, limited, and electorally responsive structure, achievable by only minor adjustments to the way most independent agencies are already structured and operate, the long controversy over removability of directors may begin to lessen, and the independent agency can attain a more secure footing in the constitutional order.

Charles N. W. Keckler is a graduate of Harvard College, where he was elected to Phi Beta Kappa and received his B.A. in Anthropology, magna cum laude. He went on to receive his M.A. in Anthropology, and his J.D., from the University of Michigan. He has served, during two presidential administrations, in several senior appointed positions in the U.S. Department of Health and Human Services, including Senior Advisor to the Secretary and Acting Deputy Secretary, and from 2017-2020, led the Department’s award-winning transformation initiative, ReImagine HHS. Between his periods at HHS, he was twice confirmed by the Senate as a minority party member of the Board of Directors of the Legal Services Corporation. His academic experience has included teaching courses in various disciplines at Harvard, the University of Michigan, the University of New Mexico, Northwestern, Pennsylvania State University, Washington & Lee, and George Mason University.

[1] See e.g. Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S. ____ (2020), 2. („leadership by a single individual […] violates the separation of powers.”)

[2] See, e.g., Steven G. Calabresi & Nicholas Terrell, The Fatally Flawed Theory of the Unbundled Executive, 93 Minn. L. Rev. 1696, 1697 (2009); Neomi Rao, Removal: Necessary and Sufficient for Presidential Control, 65 Ala. L. Rev. 1205, 1244 (2013).

[3] Ronald J., Krotoszynski Jr., Johnjerica Hodge, and Wesley W. Wintermyer,

Partisan Balance Requirements in the Age of New Formalism, 90 Notre Dame L. Rev. 940, 949-50 (2015). See also id. at 998 (“Although the Constitution contemplates a system of checks and balances in the federal government, mandatory partisan balance requirements clearly create significant tension with the unitary executive created in Article II, Section 1 of the Constitution.”). Cf. Charles N. W. Keckler, I’m Unconstitutional: Another Dubious Restriction on the Power to Remove, 20 Green Bag 2d 175, 178 (2017) (providing a justification for opposition-party members as an institutional source of alternative analysis).

[4] Stephanie P. Newbold & David H. Rosenbloom, Critical Reflections on Hamiltonian Perspectives on Rule-Making and Legislative Proposal Initiatives by the Chief Executive, 67 Public Admin. Rev. 1049, 1053 (2007).

[5] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655 (1952) (Jackson, J., concurring);

[6] See Matthew Flinders, Shifting the Balance? Parliament, the Executive and the British Constitution, 50 Political Studies, 23, 26 (2002) (discussing multiple approaches to the legislative-executive in Britain, all leading to a doctrine of parliamentary sovereignty).

[7] Members of the House of Lords can also join the executive as members of the government, and a number of sub-Cabinet officials (“junior ministers”) are also appointed from the majority and given executive responsibilities. These details and the additional nuances are not critical to the theoretical points developed here, however.

[8] F. H. Buckley, The Efficient Secret: How America Nearly Adopted a Parliamentary

System, and Why It Should Have Done So, 1 Brit. J. Am. Legal Stud. 349, 366 (2012).

[9] See id., at 80-83 (discussing how supporters of a parliamentary system compromised to accept the Electoral College).

[10] This remains only a quasi-legislature with its jurisdiction limited by the statutory delegation of authority by the real legislature, Congress, which loses none (or rather, no more) of its authority under this theory.

[11]See Kirti Datla & Richard L. Revesz, Deconstructing Independent Agencies (and Executive Agencies), 98 Cornell L. Rev. 769, 796 (2013) (“Chairs are typically seen as a presidential proxy because they usually hold their position as chair (but not as members of the agency) at the will of the President.”)

[12]See Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) (member of National Credit Union Administration was removable without cause after expiration of his statutory term, although still serving under provision that allowed holding office until replaced). There is not a Supreme Court precedent on this precise point, but the logic of Free Enterprise Fund would almost certainly uphold Swan and extend it. See Keckler, supra n. 2, at 178 n. 10.

Márton SULYOK: Hungarian Footnotes for American Debates on Common Good Constitutionalism – Part II.

Constitutional Case-Law in the Land of (Missed) Opportunities

After the introduction laid out in my earlier post on Hungarian Footnotes to the US CGC debate regarding judicial interpretation and the common good, (here), in the following I will present some of the findings of a term search for the common good (‘közjó’) in the case-law database of the Hungarian Constitutional Court (AB) and the most recent commentary of the 100 most influential AB decisions in the past 30 years (published in Hungarian in 2021, jointly by the Hungarian Constitutional Court (Alkotmánybíróság, AB) and the Social Sciences Research Institute of the Hungarian Academy of Sciences, to which I had the pleasure to contribute as a co-author.)

As the reference to the common good appeared in the Hungarian constitution in 2012 (cf. the Specific Interpretation Clause and its context presented here), it made sense to limit the inquiry to the post-2012 AB case law. As it will be seen, explicit references to ‘the common good’ (as ‘közjó’) do not appear substantially and substantively in majority argumentation (The specific historical, cultural and political factors that might have led to this situation have been detailed here). Concurring and dissenting opinions as well as academic analyses of certain key decisions tend to rely on some or deeper explanations of the common good aspect.

(NB The brief context and fact patterns of the cases can be read in the full version of this paper due to be published in Harvard Journal of Law and Public Policy in this coming semester.)

A closer examination of the sample cases in light of the common good demonstrated that there are not in fact any guiding lines in the past ten years along which any (literal) “common good jurisprudence” could be constructed. Explicit references to the common good in the context of constitutional interpretation

  • are sporadic at best, turning up only once or twice every few years;
  • might only appear in scholarly interpretations or analyses of certain decisions in an attempt to shed light on some of the considerations that the AB did not explicitly put to paper;
  • surface in a variety of unconnected subject matters, ranging from freedom of information through consumer protection in the face of loan contracts to the acquisition of agricultural land and the right to property.

In light of this, I endeavor to identify points of convergence that may to some extent render certain patterns visible, which might – in the future – provide a basis for a Hungarian „common good jurisprudence”.

At first glance, the insignificance of the common good angle in shaping majority points of view of the AB is signaled by the fact that even at the beginning of the “reign” of the Specific Interpretation Clause (2012-2015), only two cases referred to it explicitly. One of these [21/2013 (VII.19.) AB] seems to allude to the role of the state, according to scholarly commentary,[1] regarding an argument that by assuring the broadest possible freedom of information the state definitely serves the common good.

2015 seems to mark the year when considerations of the common good made it to the level of majority decisions. In reference to what I have outlined so far here and above regarding scholarly contexts of the common good, 2/2015 (II.2.) AB makes reference to the state carrying out a public duty “in the interest of the common good, to protect the public interest” (see above). This formulation (i.e., the state protects the public interest in the interest of the common good) seems to be in somewhat of a contradiction with earlier scholarly determinations that the “common good” and the “public interest” are synonymous (cf. here) by clearly separating them and stating that protecting the public interest is necessary to realize the common good. The same decision mentions the role of the state, an angle that is picked up again in a 2016 decision.

In this 2016 decision [3091/2016 (V.12.) AB], a concurring opinion by Justice Ágnes Czine makes reference to the common good, by pointing to an approach in relation to the state’s Schutzpflicht (obligation to protect) of fundamental rights and its scope taken by the BVerfG, the German Federal Constitutional Court: “The decisions, representations, acts of the different levels of state decision-making brought in the name of citizens, fall under the obligation to protect fundamental rights, extending this obligation to all acts of state bodies and organizations, because this realizes the carrying out of such mandatory (public) duties that are intended to serve the common good. […] [T]he state takes charge of tasks entrusted to it for the benefit of individuals and is accountable to them.” (see: para. [72] of the Reasoning) The argument goes no further than this.

Another two years pass and the common good becomes relevant once again in scholarly commentary,[2] tied to a very controversial issue of Hungarian constitutional law, namely the standing and the right of public (state) organs to file constitutional complaints when their fundamental rights are violated [Act CLI of 2011 on the Constitutional Court, § 27 (2)-(3)].

In the case at hand [23/2018 (XII.28.) AB] a public organ ( more specifically the Hungarian National Bank, MNB) filed a constitutional complaint against a judicial decision and this raised many dogmatic problems (and some scholarly eyebrows along with these) in constitutional law, especially because

  • A constitutional complaint is an instrument specifically designed to offer protections for individuals and their organizations against state violations of their fundamental rights protected by the constitution; and
  • The complaint filed by the state organ in the case at hand was admitted for review and the AB annulled the challenged judicial decision of the Kúria.

The relevance of the common good to the interpretation of the law at hand is also touched upon in the above-cited scholarly commentary by Chronowski and Vincze dissecting the meaning of the Specific Interpretation Clause in a similar vein that was presented regarding its implications on judicial decision-making (here). As a reminder: in interpreting certain terms and the intent of the legislator, the Specific Interpretation Clause requires judges to presume (while interpreting a law or the constitution) that they have a purpose that (i) corresponds with common sense and the common good and (ii) is both moral and economical.

Conclusions: Hungary, The Land of (Missed) Opportunities?

Based on the elaboration of the different interpretive contexts of the common good as far as the definition goes in Hungarian scholarship (see: here), and based on the very few occurrences of explicit references to the common good in AB case law (summarized briefly above), especially in the context of the Specific Interpretation Clause, we can deduce that Hungarian constitutional jurisprudence does not provide fertile grounds for references to the common good in constitutional interpretation. In this sense, the argument could easily be made that contrary to the many well-ringing and sweet-sounding provisions of the Fundamental Law contextualizing indicators and elements of the common good, Hungary is the land of (missed) opportunities.

But why is this? In describing underlying factors shaping Hungarian judicial and constitutional interpretation (see: here), I argued that in general and gradually, the notion of the common good was gradually replaced primarily due to the appearance of capitalist structures and the dualism of public and private interests. We can find much more references to other elements of the Specific Interpretation Clause in AB case law, such as ‘common sense’ and ‘moral purposes’, at one point even humor [cf. 14/2019 (IV.17.) AB] appears as an interpretive excursion, but the ‘common good’ frame of reference is very scarce, as has been represented by the five examples found in 10 years of otherwise extensive case law.

Among the very rare substantive or substantial references of the common good, we can find only one, the last from 2022 (cf. above and below), which points to the fact that will most likely not be the AB that will take it upon itself to interpret the constitutional contexts of common good in protecting fundamental rights.

Thus, if Adrian Vermuele’s CGC approach is at any point to be considered in Hungary in judicial interpretation of the constitution on any level, this means that it might not at all become influential despite a specific constitutional reference to the common good, orienting judicial interpretation of the law and of the constitution. In this sense, this is certainly a missed opportunity.

Regardless, we need to be mindful that as an institution designed to protect the constitution, and if necessary, engage in its interpretation under standards defined by the General and Specific Interpretation Clauses, the AB may only engage in such interpretation that does not replace or result in lawmaking, encroaching upon the constitutionally reserved powers assigned to the legislator under the Fundamental Law. Ample case law reinforces this position since the very early years of the Hungarian constitutional jurisprudence, declared – among others – in a case regarding abortion regulation and the legal status of the fetus, to mention just one early example from the mid-1990s.

Most recently, the AB reiterated this stance once again, in 3083/2022 (II.25.) AB, when they declared that creating the balance between individual rights and the common good is typically not a question of constitutional law and therefore subject to adjudication by the AB. It is rather an issue of lawmaking to be handled by the legislator.

At this point, it seems relevant to mention what Casey and Vermuele (cited above) talk about, in terms of an “executive-led separation of powers above other ways of allocating authority”, which they consider advantageous from the point of view of CGC.

In Europe, in those countries that have adopted a parliamentary form of government, over time, an ‘executive-infused’ (if not -led) separation of powers became predominant (termed as ‘fusion of powers’), where actual executive and legislative functions are blended and bound to each other in many respects. In Hungary, this might eventually leave a bit of legroom for the government (headed by the Prime Minister) to influence lawmaking in the service of the common good and not miss an opportunity to do so, e.g. through instructing the ministries (the equivalents of U.S. departments) regarding what values to focus on when preparing regulatory concepts for laws to be adopted by the National Assembly that also help the government realize its working program and legislative agenda.

However, the draft legislative proposals (for Acts of Parliament to be adopted by the National Assembly) still have to go through the bodies of the elected legislature and be deliberated on more than once before being put to a closing vote in the plenary session. The elaboration of these procedural issues, however, is not pertinent to the subject matter of the article on some Hungarian aspects of the American CGC debates.

[1] Kerekes, Zsuzsa: 21/2013. (VII. 19.) AB határozat – a döntés-előkészítő adatok nyilvánossága. In: Gárdos-Orosz Fruzsina, Zakariás Kinga (eds.), Alkotmánybírósági gyakorlat. Az Alkotmánybíróság 100 elvi jelentőségű határozata (Társadalomtudományi Kutató, HVG-Orac 2021), 229-231.

[2] Chronowski, Nóra – Vincze Attila: 23/2018 (XII.28.) AB – Közhatalmi szerv alkotmányjogi panasza. In:  Gárdos-Orosz Fruzsina, Zakariás Kinga (eds.), Alkotmánybírósági gyakorlat. Az Alkotmánybíróság 100 elvi jelentőségű határozata (Társadalomtudományi Kutató, HVG-Orac 2021), 893-894.

Márton Sulyok JD, LLM, PhD is an Asst. Professor (Senior Lecturer) in Constitutional Law and Human Rights at the Institute of Public Law, University of Szeged in Hungary. JD (2007, Szeged), LLM in Anglo-Saxon Law and English Legal Translation (2012, Szeged), PhD in Law and Political Sciences (2017, Szeged). Certified as an American Legal Expert (since 2009) in a joint training program of the University of Toledo College of Law and the University of Szeged Faculty of Law and Political Sciences. Currently, Prof. Sulyok is the Head of the Public Law Center at Mathias Corvinus Collegium (MCC) in Budapest, Hungary. Previously, he sat on the Management Board of the EU Fundamental Rights Agency (Vienna, 2015-2020), and currently he represents MCC on the Board of Directors of the European Public Law Organization (Athens, Legraina, Greece).

Márton SULYOK: On Methodologies, Findings and “Contextual Determinants”

Comments Inspired by some Evidence on Constitutional Courts

In their book titled High Courts in Global Perspective (Evidence, Methodologies and Findings) published in 2021 by University of Virginia Press, the editors provide constitutional and political science scholars the map to a treasure trove of empirical and quantitative sources and findings put together to provide insight (from a birds-eye point of view) into the strengths and weaknesses of research on “specialized constitutional courts […] playing a growing role in the review of both proposed and enacted laws” (p. 1.), or “specifically constructed to review the constitutionality of legislation and ultimately regulate the boundaries of political institutions”. (p.1.) Exchange of ideas on the operation of high courts and desirable reforms to their composition and competences is a dominant discourse in today’s world, especially when it comes to constitutional courts, and this book serves all stops of this discourse.

Nuno Garoupa, the lead editor, is not an unknown “contextual determinant” of American scholarship directed at the global study and understanding of the composition and operation of apex (i.e. high) courts in the national and international environment. His academic footprint is driven by examining judicial power and behavior(alism) – namely activism –, judicial politics, as well as procedural issues like the economic theory of exclusionary rules or voting procedures in terms of constitutional review, or quantitative approaches to constitutional courts in Western Europe. Rebecca D. Gill and Lydia B. Tiede are both professors of political science working with the comparative study of judicial institutions, judicial selection, judicial behavior and decision-making. The combination of their viewpoints and approaches makes the book a valuable resource supporting research directed at understanding the inner workings of and external influences on the judiciary.

In framing my review, I would like to go back to 2011, because it was then – exactly ten years before the publication of this book –, when Garoupa published a paper with Tom Ginsburg (another well-known “contextual determinant” of constitutional law scholarship) on how constitutional courts built their reputation. In this paper, they first argued that such courts that were “specialized”, because they have been created based on the 1920 Kelsenian model, which leads to two consequences – them being wedged between two dimensions: the political and the judicial. Their key argument was that these courts are inevitably political actors (being created by political institutions through political processes) as their actions of norm control (acting as what relevant academic literature calls “negative legislators”) also have political consequences. Moreover, they added that the model’s application in the different countries highly depends on local conditions.

As admitted in its Introduction, High Courts in a Global Perspective was originally intended as a collection of “draft papers, conversations and commentary” compiled in a research project funded by the US National Science Foundation, but it does much more than starts the conversation on high courts in a global perspective. Where possible, the book, its editors and the authors apply on analogies to the legal and constitutional system and doctrine of the United States to provide context for their understanding of the basic tenets of these structures.

Based on the above-mentioned qualities, this volume intends to offer a comprehensive methodological summary and commentary of globally available data on judicial behavior and relevant organizational patterns. It provides detailed insight – through sixteen chapters – into various aspects of the judicial realm such as (i) looking at patterns and indicators of various types of judicial behavior from New Zealand to India, (ii) providing insight into some of the burning questions scholars have thus far ventured to ask and answer in terms of two European (international) apex courts (the ECtHR and the CJEU) in an academic assessment of their success, e.g. by looking at the effect of judgments on national legal systems and the importance of national jurisdictions, or the application and citation of these judgments by (inter)national supreme and constitutional courts.

At times, the top-down, birds-eye perspective on global literature and research efforts directed at the various judicial systems presented in the book and its chapters produces such statements like “existing data neglect important areas of institutional activity entirely”, talking about the absence of specific research into the workings of the EU General Court. Not to argue with the fact that the EU General Court’s activity could be subject to more comprehensive research corresponding to some of the methodological avenues presented by the book, but it should be noted that huge areas of the EU General Court’s institutional activities are adequately dealt with by some contemporary scholars in Europe. This research also delves into questions that are treated by the authors, so one should not forego the conclusion that entire segments of the General Court’s work are neglected by scholarship. Maybe international scholarship (outside of Europe) is what is lacking to a greater extent thereby not informing extrinsic views on the operation of this supranational judicial entity, which can be construed as a problem regarding the goals of the book itself.

Regardless, the book is a well of meticulously thought-through and logically constructed “scholar’s guide” on how best to look at the operation of these courts from a comparative perspective. The rigor with which the editors construct the internal cohesion of the layers of methodological argumentation is exemplary. Hall and Wright argue in California Law Review (2008) that “[l]egal scholars, the mockingbirds of the academy, are great borrowers of scholarly methods. We experiment with the tools of historians, economists, sociologists, literary theorists, moral philosophers, and others, often to great effect. Yet despite these innovative efforts to study legal doctrines and institutions through different lenses, legal scholars have yet to identify their own unique empirical methodology.” In furthering this effort to create a unique empirical methodology, this book can certainly be considered a guiding light.

In addition to all this, the book addresses another challenge in terms of similar research: the lack of adequate information and data for in-depth empirical and quantitative studies. The book offers a well-rounded summary of empirical literature on Eastern Europe (p. 189-192), and sets a priority for future research in Europe: to address “data availability and publicity”. From my time working with the EU Fundamental Rights Agency between 2015-2020 as a member of the Management Board, I have first-hand experience on how absence in terms of vital data may disrupt otherwise quintessential work in monitoring best practices in that field, but we can imagine how this is reflected in terms of the intimate workings of the judiciary, whether we focus on “judicial behavioralism” or “content analysis”, as explained and promoted by Hall and Wright in their work cited above.

Hall and Wright this method of “content analysis” best fitting to projects that look into „(1) the bare outcomes of legal disputes, (2) the legal principles one can extrapolate from those outcomes, and (3) the facts and reasons that contribute to those outcomes and principles.” They also refer to Barry Friedman’s statement in his piece on Taking Law Seriously that „it is almost impossible to study law in a meaningful way without some attention to the [content of] opinions that contain these justifications.”

With this in mind, I would like to mention that not too long ago the creation of a database has been put in motion – spearheaded by the Hungarian Constitutional Court – called ECCN, European Constitutional Communication Network. (Expected to be operational by mid-2022.) Methodologically speaking, ECCN focuses on uncovering patterns and causal links across and between different national constitutional jurisdictions in Central and Eastern Europe. Its purpose is to enable a better understanding of local, national, regional specificities (previously dubbed as “contextual determinants”). In doing so, the database pools cases primarily from the constitutional jurisprudence of about a dozen Central and Eastern European EU countries that are in the center of public and therefore academic attention. In this effort, ECCN intends to enable the user to uncover and understand patterns of reasoning, thereby facilitating comparative constitutional research and application of law with such mindset. (So far, there is only one similar initiative known on the European level, the so-called CODICES, which is operated by the Council of Europe, casting a much narrower net, due to the limited scope of data available and the larger number of Member States concerned.)

In addition, ECCN also intends to open a window into any eventual “contextual determinants” of the operation of the high courts issuing the decisions selected and registered, the database may also be useful in pointing to traces of “constitutional convergence”, a theory thoroughly analyzed by Dixon and Posner. They argued in 2011 that while some find that the constitutional law of states is and should inherently be independent of the constitutional law of other states, there are concurrent opinions which put forth that “constitutional law of one state inevitably influences, and should influence, constitutional law in other states.”

I think that this must then be true to “applied constitutional law” as well, and this is what the ECCN projects intends to shed light on by providing a tool of learning for European courts in the region, enabling them to engage in judicial dialogue through their cases and their reasoning. Through such an effort, maybe some regional commonalities might emerge as well (beyond certain local conditions and national specificities) that will point to the fact that when certain constitutional law problems may be similar or the same in certain states, then it stands to reason that correlation between their constitutional legal solutions is to be expected as well. And this is particularly true if they are closer together due to a shared or similar historical past, or economic and social – contextual – determinants.

This brings me to my second point regarding the book, being that Garoupa, Hill and Tiede also call attention to the importance of having in-depth knowledge on regional and national specificities when analyzing high courts. In a very important part of the book, authors Bagashka and Garoupa talk about Constitutional (and Supreme) Courts in Europe (pp. 186-199). They react to current trends in relevant literature disserting on the politicization of the institutions of what I call “constitutional justice” by admitting that factual conclusions can only be drawn in this context in command of a “deep understanding of contextual determinants.” Most possibly the “local conditions” argument already elaborated by Ginsburg and Garoupa (see: above) reverberates in this thought, which I characterized above as regional and national specificities. But even if this is not the case, to my mind, it is indubitably true that without intimate knowledge of the internal workings of the legal, political and constitutional arrangements and structures that support and sustain these judicial institutions (i.e. the determinants of the context) that are specific to the country (and sometimes the region) no conclusive findings can be produced.

Unfortunately, as it can be seen from many current trends in mainstream constitutional discourse, the time that would be necessary to gain an actually deep understanding of these historical, cultural or even political and constitutional – contextual – determinants (i.e. the European concepts of constitutional identity) of certain legal systems is something of a luxury that seems not to be afforded to and by many. I can only hope that methodologically sound projects like the ECCN that was presented above will help avoid the further increase of such tendencies and push critics not just to “talk the talk”, but also to “walk the walk”.

Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu