Notice & Comment

A Missing Distinction in Loper, by Ilan Wurman

Two weeks ago, the petitioners filed their brief in Loper Bright Enterprises v. Raimondo, the case next term in which the Supreme Court will reconsider Chevron deference. Several legal scholars have also filed amicus briefs in favor of petitioners or on behalf of neither party. I am not among them. But I was somewhat surprised that both the petitioners and these scholars left a critical legal distinction—that between private and public rights—largely unexamined or altogether unmentioned. Whether Chevron deference violates Article III or not seems to me, anyway, to depend largely on whether that case at hand involves private or public rights (aside from whether Congress has in fact authorized such deference). 

Professor Mascott’s brief and Professor Merrill’s brief don’t mention the distinction in their discussions of Article III; nor does the petitioners’ brief mention the distinction at all. Professors Barnett and Walker argue that “constitutional arguments against Chevron are unpersuasive” because “Congress can preclude judicial review altogether of some or all claims under Article III.” They briefly gesture to the relevance of the distinction when they write that “[p]erhaps Chevron offends Article III in certain contexts, such as when private rights are at issue or agency interpretations lead to criminal liability.” Professor Bamzai gives the most attention to the public-private distinction in his brief. In cases in which “non-Article III adjudication” is permissible, deferential review might be permissible; those cases, as the Court said in Stern v. Marshall, typically involve what are called “public rights.” But, Bamzai writes, taking an “extreme example,” courts would surely not give deference to Department of Justice interpretations in criminal cases.

It seems to me that the question that Barnett and Walker, and Bamzai, address is the right one, but more elaboration would be useful. Can Congress in fact preclude judicial review altogether in “some” claims under Article III, or in “all” claims? This matters because, as Barnett and Walker recognize, the greater power to preclude review surely includes the lesser power to authorize deferential review. If this greater power only exists for some cases, it would seem to be very important to try to figure out what those cases are. So we should be asking: (1) What are public rights cases? (2) Why are public rights cases exempt from Article III? 

This is not the place to go into all the details, but as I and several other scholars like Caleb NelsonAnn Woolhandler, and Will Baude have written, at a minimum “private rights” are rights that persons would have had in the state of nature, as modified by the civil law, such as the rights to life, liberty, and to acquire and possess property; “public rights” are rights belonging to the public or are entitlements private individuals can claim from the government. The classic examples of public rights are rights of way, such as public roads and waterways; and public privileges like welfare benefits, public employment, and public land grants. It is familiar to all that, as a historical matter, public rights did not have to be determined by a court at all.

There are at least two reasons such rights could be resolved without a court. First, the administration of public benefits and government resources easily fit within the definition of executive power, as opposed to judicial power, which is required to divest someone of private rights. Second, sovereign immunity would have barred suits in which a citizen was wrongfully denied a claim for such benefits. If such matters need not be determined by a court at all, then the legislature can authorize limited judicial review, including deferential judicial review. Divesting persons of their private rights to life, liberty, and property, on the other hand, is the core of the judicial power; it is the kind of thing that only courts vested with the “judicial power” can do, at least as a historical matter. And sovereign immunity would not apply.

If all of that is right, and the judicial power is “emphatically . . . to say what the law is” in cases involving the rights of the individual, then at least deference to legal interpretations would seem to be unconstitutional in such cases. And if Congress can preclude review of public rights cases, then it can authorize deferential review in those cases. 

There remains the problem, however, of the Supreme Court having greatly expanded the definition of public rights. To simplify a bit, in the middle two quarters of the twentieth century—the leading cases are NLRB v. Jones & Laughlinand Atlas Roofing—the Supreme Court held that many rights or causes of action created by congressional statute are public rights. But as even Crowell v. Benson recognized, the source of law is irrelevant to whether a matter is one of public or private right; the relationship between the parties and the legal interest at stake are what matter. See 285 U.S. at 51 (“The present case . . . is one of private right, that is, of the liability of one individual to another under the law as defined”). 

Thus, if the Supreme Court wants to address the constitutional question (which it may not want to do), it would eventually have to revisit its public rights jurisprudence. To be sure, it can avoid the issue entirely because even if Congress could have precluded review, the question remains whether it has required or authorized deferential review in those situations where review is available. And as Professor Bamzai writes in his brief, arguably APA section 706 answers those questions in the negative. 

How would all of this cash out in Loper? Interestingly, the case involves the right to harvest fish in national fisheries. As I have written in a completely different context—the context of antebellum comity clause jurisprudence—access to natural resources such as fisheries was understood to be a public right! So I suspect that Congress could preclude review in these cases and could authorize deferential review. Whether it has done so in this case would seem to be the real question after all. 

Ilan Wurman is an associate professor of law at the Sandra Day O’Connor College of Law at Arizona State University. He is the author of the casebook Administrative Law Theory and Fundamentals: An Integrated Approach (Foundation Press 2021).

Print Friendly, PDF & Email