Things to Read This Week (4/14)
The Endgame of Administrative Law, by Nick Parrillo. From 2018, but absolutely essential reading today. Here is the abstract:
Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the courts say. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. The Article makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions (fines and imprisonment) to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power.
(Highly relevant to The Supreme Court and the Second Trump Administration, published yesterday.)
Coups and Punishments in the Constitutional Order, by Anthony Kreis — on the threat of self-coups and the importance of punishing them.
Sinai and Philadelphia, by Richard Primus. “What does the seder have to do with constitutional law?” From 2020. This is related, if I read it correctly, to his work on “continuity tenders.”
Endgame is a really fascinating and thorough snapshot of the way things have been done for the past few decades (century?), but I don't see anything for charting what happens when the typical incentives break down. I'm reading through section VI.D. "The Norm of Compliance and the Shame of Contempt" - Prof. Parrillo admits to some educated speculation about where they come from, and most of the stuff he identifies - public stigma, reputational harm, internalization of community norms - look pretty squishy and mutable. Or touchingly naive ("faith in its fairness or neutrality"? I guess we can hope.). The recent pardons and firings/suspensions at DOJ seem meant to push the cultural incentives the other way maybe? Anyway it does not look like he sees a solid foundation or durable basis for the habit of compliance?