Imagine, if you will, a nation where Congress makes laws rather than delegating the task to bureaucrats. A nation where police officers who use constitutionally-unreasonable force can face civil penalties. A nation where prosecutors who fabricate evidence or withhold exculpatory evidence can be held to account. A nation where economic liberties (the right to earn a living in the occupation of one’s choice) enjoy the constitutional protections that the drafters of the 14th amendment intended.

What if the only thing that stood in the way of these eminently reasonable goals was judge-made law; a handful of undeniably obscure and relatively recent Court-created doctrines?

The elevation of Neil Gorsuch to the Supreme Court has highlighted speculation that the Court may abandon its controversial doctrine of Chevron Deference. Eliminating Chevron Deference would be a good start, but why stop there? SCOTUS should reexamine other pernicious court-created doctrines, starting with qualified and absolute immunity and the rational basis test.

Chevron Deference: I’m from the Government and the law is what I say it is

Under Chevron Deference, the court grants government agencies broad deference in interpreting the statutes they administer, as long as “the agency’s (interpretation) is based on a permissible construction of the statute”, and Congress has not spoken directly to the precise issue in question. The court laid out this framework in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc (1984).

Why is this a bad thing? As political scientist Charles Murray noted in By the People: Rebuilding Liberty Without Permission,“Chevron deference (gives) regulatory bureaucrats a pass available to no private citizen and to no other government officials — including the president and cabinet officers…For everyone except officials of the regulatory state, judges do not defer to anything except the text of the law in question and the body of case law accompanying it.”

Chevron Deference both empowers the administrative state and gives Congress a free pass.

It empowers the administrative state in that agencies can recast the law in accord with current policy preferences, without having to go to Congress for legislative change. Regulators can create and implement whole new regulatory programs – e.g. the Obama Administration’s Clean Power Program, net neutrality, college sexual assault policies, without needing to seek legislative approval.

It gives Congress a free pass in that rather than being forced to hammer out a legislative compromise and then return home to face the voters, Congress can dodge the hard decisions by delegating them to bureaucrats.

Are these new programs bad? Not necessarily. Do regulatory agencies have technical expertise that should be considered? Almost invariably. Will agencies continue to need to promulgate regulations to implement their legislatively-specified mission? Absolutely. Does this mean that technical expertise provides special insights into weighing costs and benefits and balancing policy priorities? Probably not. Does it mean that un-elected bureaucrats should have virtual carte blanche to decide the law as well as enforce it?

Well, in the words of 4th Circuit Court of Appeals Judge J. Harvie Wilkinson, the administrative state “has come of age in constitutional silence… (and) filled a vacuum left when the legislative and judicial branches, for reasons of their own, ceded enormous authority to bureaucratic judgment.”

Wilkinson faults the courts as well. “The habit of deference to any ‘reasonable’ agency regulation or adjudication under the agency’s enabling statute bespeaks a willingness on the part of courts to take the easy way out.” Gorsuch sounded a similar note when he sat on the 10th Circuit Court of Appeals, declaring Chevron to be “no less than a judge-made doctrine for the abdication of the judicial duty.”

Other justices have not been as vocal as Gorsuch, but there appears to be an increasing willingness on the part of the conservative wing of the Court to limit the scope of Chevron, if not discard it entirely. The multi-decade conservative infatuation with judicial deference that peaked with the nomination of Robert Bork diminished considerably when the Roberts court deferred to Congress and the Obama administration in various Obamacare rulings (NFIB v. Sebelius, King vs Burwell, et al).

It would be a mistake to assume that deference began with Chevron, or that Chevron Deference has been consistently applied, but Chevron’s detractors see the doctrine’s repudiation as a means of reining in the bureaucracy and of reasserting a more traditional Marbury v. Madison view of the Supreme Court’s role. Again quoting Wilkinson, “the great casualty of [the administrative state’s] growth has been democratic governance,” as “the gap between governor and governed grows ever wider… the noose around the private sector grows ever tighter and the checks on the bureaucratic apparatus seem ever looser.”

While Chevron is currently drawing conservative ire, it would also be a mistake to think of it in partisan terms. The initial decision validated a Reagan administration decision, and it seems likely that major policy reinterpretations during the Trump administration will make Chevron less popular with left-leaning politicians when it is their oxen who are being gored

So let’s assume that the proper case comes before the Court and that Chevron joins Plessy and Dred Scot in the judicial wastebasket. What other questionable doctrines should SCOTUS turn a skeptical eye to next?

Absolute & Qualified Immunity: I’m from the Government and I can trample your rights if I want to

Absolute immunity and qualified immunity are two more Court-created structures ripe for dismantling. These modern doctrines protect government actors, particularly law enforcement and prosecutors accused of civil rights violations, by setting an extraordinarily high bar for civil suits. While eviscerating Chevron would appeal to conservatives, dialing back absolute and qualified immunity might be equally attractive to the liberal wing of the court.

While the immunities are relatively recent creations, the statute they are designed to neuter dates to the aftermath of the Civil War. As part of Congress’s efforts to protect newly-freed slaves from the actions of the states in which they lived, the Civil Rights Act of 1871 included a provision (now known as 42 U.S. Code Section 1983) saying: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, of the District of Columbia, subjects or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit, or equity, or other proper proceeding for redress.”

In other words, people whose rights were violated by police or other government officials could sue them in federal court.

Despite this rather clear legislative intent, the Supreme Court took it upon themselves to invent a defense known as “qualified immunity, ” in Pierson v. Ray (1967) and to greatly expand it in Harlow v. Fitzgerald (1982). Shortly thereafter, the Court birthed the concept of “absolute immunity” in Imbler v. Pachtman (1976), primarily applied to prosecutors.

It is important to remember that these immunities for government officials are relatively recent inventions. The phrases “qualified immunity” and “absolute immunity” appear nowhere in the Constitution, nor do they appear in Section 1983. Given that SCOTUS justified creating qualified immunity based on fears of “[diverting] official energy from pressing public issues, and [deterring] able citizens from acceptance of public office,” it is pertinent to note that the nation functioned for almost a century before qualified immunity existed.

Furthermore, while the Court initially claimed that qualified immunity was grounded in common law defenses of good faith and probable cause available for state law false arrest and imprisonment claims, scholars, most notably Baude, have convincingly demonstrated that rationale is unsupported by facts. Even the Court subsequently backed away from trying to link qualified immunity jurisprudence to common law, admitting in Anderson v. Creighton (1987) that it had “completely reformulated qualified immunity along principles not at all embodied in the common law.”

In oral arguments for Pottawattamie v. Maghee, former Bush administration Solicitor General Paul Clement argued that “Keeping prosecutors immune from liability is a classic case of judicial activism,” noting that there is “no common law support at all for absolute immunity. And I wouldn’t think that this Court was particularly interested in coming up with implied immunities that aren’t in the statute and had no basis at the common law, and that’s why I think some of the Justices that have looked at this as an original matter have tended to be quite reluctant in recognizing absolute immunity because it lacks support in the text.”

In Pierson, SCOTUS opined that government officials were entitled to immunity if (1) the official believed in good faith that his conduct was lawful and (2) the conduct was objectively reasonable. The Court worried that if police officers were not immune, they might be disinclined to carry out their official duties (in this case, arresting a group of white and black ministers attempting to use a segregated interstate bus terminal waiting room.)

15 years after Pierson, the Court decided the bar for granting immunity needed to be set even lower. Determining an official’s subjective state of mind (i.e. did he have a good faith belief that his action was lawful) required a trial, often by jury. Ostensibly concerned that allowing suits to go to trial “[diverted] official energy from pressing public issues, and [deterred] able citizens from acceptance of public office”, the Supreme Court in Harlow eliminated the requirement for good faith, ruling that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

In short, after Harlow, bad faith became irrelevant. Qualified immunity depended only on whether or not a reasonable person in the official’s position would have known their actions were in line with clearly established legal principles, i.e. a plaintiff must find a binding precedent or a consensus of cases so factually similar that every officer would know that their conduct was unlawful.

The 8-1 Harlow decision overruled both the DC Court of Appeals and the district court when it found in favor of the two Nixon Administration officials who were being sued. The presumably-ill informed lower courts who rejected immunity for the officials didn’t get any love from the single dissent either. Chief Justice Warren Burger argued that the aides should have been entitled to absolute immunity rather than merely qualified immunity.

In the words of Jay Schweikert, a Policy Analyst with Cato Institute’s Project on Criminal Justice, “(Qualified Immunity), invented by the Court out of whole cloth, immunizes public officials even when they commit legal misconduct, unless they violate ‘clearly established law.’ That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.”

Qualified immunity doctrine is thus an exception to the maxim that “ignorance of the law is no defense.” Normal citizens are presumed to know, and required to follow, the law, but under the qualified immunity doctrine, police officers whose job is to enforce the law are not, in §1983 cases, expected to know the law unless it is ‘clearly established.’

For example, in Brooks v. City of Seattle, the Ninth Circuit held that while it was constitutionally excessive to tase a pregnant woman three times in less than one minute, the officers were entitled to qualified immunity because the law was not sufficiently clear to ensure that every reasonable officer would have realized that doing so violated that right.

In Kisela v. Hughes, the Ninth Circuit ruled that police officer Andrew Kisela used unreasonable force when he shot the knife-holding plaintiff four times but their denial of qualified immunity was overruled by the Supreme Court, which viewed this as “far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.”

A series of articles on the The Volokh Conspiracy blog notes that several justices have publicly questioned the common law foundations and policy justifications for qualified immunity.

In his concurrence in Ziglar v. Abbasi (2017), Justice Thomas criticized the doctrine for bearing little resemblance to the common law at the time the Civil Rights Act of 1871 became law. He mused that “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence…qualified immunity should conform to the “common-law backdrop against which Congress enacted the 1871 Act,” rather than “the sort of ‘freewheeling policy choice[s]’ that we have previously disclaimed the power to make.”

Justice Sotomayor, sometimes joined by Justice Ginsburg, has repeatedly expressed concern that the Court’s qualified immunity decisions contribute to a culture of police violence. In her dissent in Kisela v. Hughes, Justice Sotomayor opined that qualified immunity was gradually becoming “an absolute shield for law enforcement officers… allowing them to “shoot first and think later.” Sotomayor and Ginsburg also criticized the court for “routinely display[ing] an unflinching willingness ‘to summarily reverse courts for wrongly denying officers the protection of qualified immunity’ but ‘rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.’”

District and appellate court judges have been even more vocal. Fifth Circuit Judge Don Willett’s comments on qualified immunity endear him to libertarians. “I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime…To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question “beyond debate” to “every” reasonable officer… “

In a decision denying immunity to four police officers accused of assaulting a man who refused to let them into his apartment without a warrant, Federal District Judge Jack B. Weinstein complains that the broadened qualified immunity doctrine protects “all but the plainly incompetent…The Supreme Court’s recent emphasis on shielding public officials and federal and local law enforcement means many individuals who suffer a constitutional deprivation will have no redress.”

In a Washington Post op-ed, Second Circuit Court Judge Jon Newman writes that, “Suing the officer for money damages in a federal civil rights suit is the only realistic way to establish police misconduct and secure at least some vindication for victims and their families.”

To the extent that qualified immunity gives police officers virtual carte blanche when it comes to civil rights violations, absolute immunity renders prosecutors immune from liability entirely.

As Bidish Sarma notes on ACSBlog“This decision (Imbler v. Pachtman) sheathed prosecutors in protective armor while they pursued criminal convictions through an era of crime-related hysteria, and it eroded one of the few mechanisms available to hold prosecutors accountable… Put simply, qualified immunity protects government officials who abide by the rules (although the law defines those rules very narrowly). Absolute immunity protects them from civil liability even when they break the rules.”

The Rational Basis Test: Rights are hereby declared separate and not even close to equal

Mark Twain wrote that “ “No man’s life, liberty or property are safe while the legislature is in session.” A third Court-created doctrine that is ripe for review is the rational basis test; the concept that different classes of rights should be entitled to different levels of judicial protection from legislative impingement.

While its parentage can be traced back to the progressive era fetish for removing constraints on governmental power – James Bradley Thayer channelled via Oliver Wendell Holmes and West Coast Hotel v. Parrish and Nebbia v. NY, rational basis was first set out in US v. Carolene Products Company,(1938). The case is famous for its “Footnote Four” considered to be “the most famous footnote in constitutional law.” Footnote Four established the “rational basis test” for economic legislation, specifying that legislation need only be rationally related to a legitimate state interest to be deemed constitutional.

In effect, the Court divided rights into two classes, fundamental and non-fundamental. Laws targeting “discrete and insular minorities,” e.g. based on race, religion, national origin, or citizenship status, or burdening “Fundamental Rights,” e.g. voting, interstate migration, or access to the courts, were subject to strict scrutiny (The government must demonstrate that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest) or intermediate scrutiny (The government must demonstrate that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest).

In contrast, rights such as economic liberty were consigned to the ‘non-fundamental’ bin and thus received minimal judicial protection.

While the ‘appropriate’ level of judicial deference had always been a moving target, Footnote Four represented the first explicit incorporation of the concept of levels of judicial scrutiny into Supreme Court jurisprudence.

The rational basis test was part of the Court’s capitulation to Franklin Delano Roosevelt’s 1937 threat to pack the Supreme Court. SCOTUS had initially stymied FDR’s attempts to dramatically expand government’s role during the New Deal, but it became increasingly deferential after the 1937 shot across the bow. Beginning in 1937, many New Deal programs that the Court would have been expected to strike down suddenly passed constitutional muster. The Court had previously abandoned its settled jurisprudence in the area of substantive due process, the doctrine dealing with rights not specifically enumerated in the Constitution, and adopted a newly expansive interpretation of what constituted interstate commerce (including growing wheat on your own farm for your own consumption.)

While strict scrutiny is no guarantee that the court will stand up for individual rights (Korematsu v. U.S. (1944), where SCOTUS blessed internment camps for American citizens of Japanese descent, was decided pursuant to strict scrutiny), rational basis meant that Congress and state legislatures could trample on economic liberties with impunity.

For example, in Kotch v. Board. of River Port Pilot Commissioners (1947) a 5-4 Court upheld a Louisiana law that effectively prevented anyone but a friend or relative of an existing riverboat pilot from becoming a pilot, suggesting that Louisiana’s system might serve the legitimate purpose of promoting “morale and esprit de corps” on the river.

In Williamson v Lee Optical (1955), SCOTUS upheld an Oklahoma statute that barred people who were not licensed optometrists or ophthalmologists from replacing broken lenses and prevented out-of-state eyeglass retailers from advertising. Despite acknowledging that “in many cases, the optician can easily supply the new frames or new lenses without reference to the old written prescription,” and finding that the law was not “in every respect logically consistent with its aims,” the Court deferred to the Legislature’s judgment. As Justice Douglas explained, “It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”

In FCC v Beach (1993), the Court went so far as to say that economic regulations satisfied the equal protection requirement if “there is any conceivable state of facts that could provide a rational basis for the classification.”

In other words, a state law must be upheld if it (or the classification it contains) is rationally related to any conceivable legitimate interest of the state, even if that conceivable legitimate interest wasn’t the actual motivation for enacting the legislation. If attorneys defending the law lack the creativity to come up with a conceivable legitimate interest, some circuits view it to be the judge’s responsibility to try to do so in their stead.

The courts have also been cynically candid about the impact of the deferential standard. George Will notes that in upholding an Oklahoma law requiring online casket retailers to have funeral licenses, (requiring several years of coursework, a one-year apprenticeship, embalming 25 bodies and taking two exams), the 10th U.S. Circuit Court of Appeals cavalierly noted that: “While baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.”

Justice John Paul Stevens more broadly noted in his concurrence to NYS Board of Education v Lopez Torres : “[A]s I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: ‘The Constitution does not prohibit legislatures from enacting stupid laws.'”

As with any SCOTUS doctrine, rational basis can be contorted when it suits the needs of the majority. When a 6-3 Court struck down Texas’s criminalization of sodomy in Lawrence v. Texas, by extension making same-sex sexual activity legal in every U.S. state and territory, Justice Scalia fumed that the majority declined to apply the strict scrutiny standard that would follow if they had recognized homosexuality as a full-fledged “fundamental right” yet applied an unusually rigorous rational basis review that rendered the lack of recognition a distinction without a difference.

Other justices have been less protective of rational basis. Justice Souter, for example, argued in Washington v. Glucksberg that the role of the Court in all cases, including unenumerated rights cases, is to ensure that the government’s action has not been arbitrary. Justice Stevens repeatedly criticized tiered scrutiny, advocating a more active judicial balancing test based on reasonability.

In the end, if there is a question about constitutional rights, including rights covered by the often-slighted ninth amendment, why shouldn’t the Court be required to apply strict scrutiny in every case to ensure the right isn’t being unnecessarily violated? Why should a doctrine such as rational basis be permitted to consign an entire category of rights to second class status, denying basic protections to individuals harmed by the arbitrary actions of legislatures typically doing the bidding of vested interests?

So here we have it… four doctrines: Chevron Deference, Qualified Immunity, Absolute Immunity and Rational Basis. Each one may have seemed like a good idea at the time, yet none have any basis in the constitution or in common law. Each is an undeniable example of judge-made law. Each has tended to bolster the power of government officials. Each has tended to reduce the constitutional protections afforded to private individuals. Each is ripe for re-evaluation.