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Administrative Governance

Regime Change

The full text of this Foreword may be found by clicking the PDF link to the left.

Introduction

On the last day of oral argument this Term, in an atypical May convening, the Justices of the Supreme Court grappled with how to integrate two recent reforms to the federal sentencing regime in the case of Terry v. United States.1×1. 141 S. Ct. 1858 (2021). In 2010, Congress had enacted the Fair Sentencing Act2×2. Pub. L. No. 111-220, 124 Stat. 2372 (codified as amended in scattered sections of 21 and 28 U.S.C.). and reduced the by-then notorious 100:1 sentencing disparity between crack and powder cocaine offenses to 18:1. The Act was a triumph for criminal justice reformers after decades of advocacy highlighting the racially disproportionate and loaded nature of the disparity.3×3. For an account of the origins of the disparity, see Rachel Elise Barkow, Prisoners of Politics: Breaking the Cycle of Mass Incarceration 74–75 (2019). In his opinion for the Court, Justice Thomas cited a 1995 report from the Sentencing Commission stating its view that the 100:1 ratio was too high, that the layering of the Sentencing Guidelines on top of the ratio “doubly punished” offenders, and that the Sentencing Guidelines’ disproportionate effects on Blacks created a “perception of unfairness.” Terry, 141 S. Ct. at 1861 (quoting U.S. Sent’g Comm’n, Special Report to the Congress: Cocaine and Federal Sentencing Policy 192, 196 (1995), https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drug-topics/199502-rtc-cocaine-sentencing-policy/1995-Crack-Report_Full.pdf [https://perma.cc/22ZV-TEFQ]). It took another fifteen years for Congress to act, underscoring the political perils of criminal justice reform. See Barkow, supra, at 170 (discussing how in 1995, Congress rejected the Sentencing Commission’s proposed guidelines that would have treated crack and powder cocaine equally, and how Congress often ignores both the Commission’s views and empirical evidence). In 2018, Congress then enacted the First Step Act4×4. Pub. L. No. 115-391, 132 Stat. 5194 (codified as amended in scattered sections of 18, 21, 34, and 42 U.S.C.). to complete its work. In an amicus brief to the Supreme Court, four senators who co-sponsored the First Step Act described it as encompassing a “historic bipartisan coalition — the likes of which, over the last several decades, Congress has rarely seen,” one that “came together to bring greater fairness and justice to the Nation’s criminal justice system.”5×5. Brief of Senators Richard J. Durbin et al. as Amici Curiae in Support of Petitioner at 2, Terry, 141 S. Ct. 1858 (No. 20-5904) [hereinafter Brief of Senators Richard J. Durbin et al.]. In an era marked by partisan rancor and legislative torpor, this significant criminal justice enactment rang out as the kind of reform still possible under the right circumstances. Section 404 of the First Step Act, “[c]ritical to that coalition,” applied the 2010 changes to the crack and powder cocaine sentencing ranges retroactively, enabling offenders still in prison to apply for resentencing under the fairer terms.6×6. Id.; see First Step Act § 404.

Tarahrick Terry was denied this opportunity. Federal prosecutors argued (and the Eleventh Circuit agreed) that section 404 did not apply to the drug offense under which he had been convicted for possessing just under four grams of crack cocaine — the bottom tier on the ladder of offenses involving possession with intent to distribute.7×7. See Petition for a Writ of Certiorari at 13–14, Terry, 141 S. Ct. 1858 (No. 20-5904). Terry was charged under 21 U.S.C. § 841(a)(1) and sentenced to just over 15.5 years pursuant to 21 U.S.C. § 841(b)(1)(C). See id. at 11. When the Supreme Court granted certiorari in the case, three other courts of appeals had also adopted this construction of the statute, whereas two more had concluded that the 2018 statute applied in cases like Terry’s. See id. at 14. Section 404 of the First Step Act authorizes federal district courts to reduce the sentence of anyone convicted of a “covered offense,” First Step Act § 404(b), which Congress defines as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . , that was committed before August 3, 2010.” Id. § 404(a). The question in the case was thus whether the statutory penalties for the offense for which Terry was convicted, under 21 U.S.C. § 841(b)(1)(C), were “modified” by the Fair Sentencing Act. Petition for a Writ of Certiorari, supra, at i. During his original sentencing under the 1986 Anti-Drug Abuse Act,8×8. Pub. L. No. 99-570, 100 Stat. 3207 (1986). coupled with the relevant enhancements under the Federal Sentencing Guidelines, Terry faced a sentencing range of no more than thirty years, and the district court ultimately imposed a sentence of 188 months, followed by a period of supervised release.9×9. See Terry, 141 S. Ct. at 1862 n.3, 1866; Petition for a Writ of Certiorari, supra note 7, at 22. With the benefit of the First Step Act, the upper limit on his sentence would have been twenty years, which in his view almost certainly would have translated into a substantially lower sentence than he received.10×10. See Petition for Writ of Certiorari, supra note 7, at 12, 25. As he explained in his petition for certiorari, the evidence from the first year of the First Step Act has been powerful: district courts have applied section 404 to reduce sentences on average by seventy-one months, or by 26%.11×11. See id. at 10 (citing U.S. Sent’g Comm’n, The First Step Act of 2018: One Year of Implementation 43 (2020), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200831_First-Step-Report.pdf [https://perma.cc/Z79J-TQY4]). More than 90% of those who have obtained relief have been Black men, 57.4% of whom were sentenced as career offenders.12×12. Id. (citing U.S. Sent’g Comm’n, supra note 11, at 44–45).

The United States government opposed certiorari in the case. Throughout most of the litigation and across the courts of appeals, the Department of Justice (DOJ) consistently defended the construction of the First Step Act that precluded Terry and those similarly situated from resentencing.13×13. See id. at 12–13. But in March of 2021, the acting Solicitor General (SG) sent the Court a letter.14×14. Letter from Elizabeth B. Prelogar, Acting Solic. Gen., U.S. Dep’t of Just., to Hon. Scott S. Harris, Clerk, U.S. Sup. Ct. (Mar. 15, 2021), https://www.supremecourt.gov/DocketPDF/20/20-5904/171877/20210315103509839_20-5904%20Terry.pdf [https://perma.cc/N6DT-ERC6]. “Following the change in Administration,” she wrote, “the Department of Justice began a process of reviewing the government’s interpretation of Section 404 of the First Step Act,” after which it changed its position to support Terry’s claims that the First Step Act applied to him.15×15. Id. at 1. The government was now calling for the reversal of the Eleventh Circuit and seeking leave to file an out-of-time brief.16×16. See Motion of the United States for Leave to File Out of Time and Brief for the United States, Terry v. United States, 141 S. Ct. 1858 (2021) (No. 20-5904). The Court obliged and appointed an amicus to take the position the government had abandoned.17×17. See Terry, 141 S. Ct. at 1862. The government’s about-face required the Court to reschedule the argument for May, when it ordinarily would have closed its virtual doors and turned inward to produce the stream of summer opinions.18×18. See Docket Entry on March 25, 2021, Terry, 141 S. Ct. 1858 (No. 20-5904) (rescheduling oral argument). It also prompted questions from the Justices.

Chief Justice Roberts opened his questioning of the Deputy Solicitor General by noting the switch: “Prior administrations have done that. Subsequent administrations are going to do that. But I wondered what standard your office applies in deciding when to take that . . . step. Is it just that you think the position is wrong and you would have reached a different one?”19×19. Transcript of Oral Argument at 34, Terry, 141 S. Ct. 1858 (No. 20-5904), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/20-5904_1bn2.pdf [https://perma.cc/632G-7FT4]. Justice Barrett probed still further: “[Y]ou changed pretty late. It was the day your brief was due. Would you characterize [the government’s prior position] as implausible, or is it your position that the statute is ambiguous and that in light of the purposes of the First Step Act and the Fair Sentencing Act that yours is the better interpretation?”20×20. Id. at 52–53. The cold transcript masks any hint of skepticism or annoyance behind these questions. But the Justices were clearly seeking to get their bearings — to determine the modes of reasoning the government had adopted to change its view of the law. The Justices were looking for familiar processes or administrative law concepts with which to assimilate the government’s switch into the range of reasonable disagreement about the law’s meaning.21×21. Justices in other cases have taken note and even expressed displeasure when the government has changed its position before the Court. In Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), Justice Scalia took the Solicitor General to task: “[T]hat is a new position for the . . . State Department, isn’t it? . . . [A]nd for the United States Government? Why should . . . we listen to you rather than the solicitors general who took the opposite position . . . ?” Transcript of Oral Argument at 43, Kiobel, 569 U.S. 108 (No. 10-1491), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/10-1491rearg.pdf [https://perma.cc/DC2Z-ARFF]; see also Transcript of Oral Argument at 28, Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018) (No. 16-980), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-980_5426.pdf [https://perma.cc/9Y85-XTGM] (statement of Sotomayor, J.) (“General, could you tell me, there’s a 24-year history of solicitor generals of both political parties under . . . Presidents of both political parties who have taken a position contrary to yours . . . . Seems quite unusual that your office would change its position so dramatically.”).

Tarahrick Terry lost in the Supreme Court by a vote of 9–0, despite the fact that the U.S. government had changed its reading of the law to support his claim to resentencing.22×22. See Terry, 141 S. Ct. at 1858, 1864. He is scheduled to be released from prison later this year, so the outcome of the case will have a limited effect on him.23×23. See Ekow Yankeh, In Final Case the Court Will Hear This Term, Profound Issues of Race, Incarceration, and the War on Drugs, SCOTUSblog (May 3, 2021, 11:03 AM), https://www.scotusblog.com/2021/05/in-final-case-the-court-will-hear-this-term-profound-issues-of-race-incarceration-and-the-war-on-drugs [https://perma.cc/3GW4-26FV]. But the Court’s reading of the statute will have significant implications for defendants like Terry who were sentenced before 2010, for terms of a decade or more, for convictions involving low-level drug possession.24×24. The brief submitted by the ACLU and the NAACP Legal Defense and Education Fund highlighted some of these cases. See Brief Amici Curiae of the American Civil Liberties Union et al. in Support of Petitioner at 23–29, Terry, 141 S. Ct. 1858 (No. 20-5904). The exquisite technical puzzle of the case does not quite match the gargantuan political effort the two reconciled statutes represent — the bipartisan effort to refashion the punitive federal sentencing regime in a way that transformed the system from top to bottom. But despite the government’s best efforts, not a single Justice could reach an answer that matched the text with the actual ambitions of the new sentencing regime as articulated by the lawmaker amici.25×25. The First Step Act applies the new sentencing schemes of the Fair Sentencing Act retroactively to defendants sentenced for a “covered offense,” defined as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . , that was committed before August 3, 2010.” First Step Act of 2018, Pub. L. No. 115-391, § 404(a), 132 Stat. 5194, 5222. Federal law defines non-marijuana drug offenses in three tiers. See 21 U.S.C. § 841(b)(1)(A)–(C). The Fair Sentencing Act changed the quantity of crack cocaine required for a Tier 1 offense from 50 grams and above to 280 grams and above and for Tier 2 offenses from between 5 and 49 grams to between 28 and 279 grams. Id. § 841(b)(1)(A)–(B). The Act also eliminated the five-year mandatory minimum sentence for simple possession of crack cocaine. See U.S. Sent’g Comm’n, Report to the Congress: Impact of the Fair Sentencing Act of 2010, at 29–30 (2015), https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/drug-topics/201507_RtC_Fair-Sentencing-Act.pd [https://perma.cc/E7G7-XTHT]. Congress did not, however, change Tier 3, which applies to offenses involving less than five grams. 21 U.S.C. § 841(b)(1)(C). Based on this congressional silence, federal prosecutors have argued that the Fair Sentencing Act did not “modify” Tier 3 offenses and that the retroactive effect of the First Step Act does not apply to Tier 3 offenses as a result. See, e.g., Petition for a Writ of Certiorari at i, Terry, 141 S. Ct. 1858 (No. 20-5904). Petitioner Terry, prominent U.S. Senators as amici curiae in support of petitioner, and now the U.S. government responded with their own textualist, legalistic approach to the case, arguing that Congress’s use of the word “modified,” with its broader meaning than “amended,” demonstrated that the changes to Tiers 1 and 2 raised the quantities required for Tier 3 offenses as well. Brief of Senators Richard J. Durbin et al., supra note 5, at 11–17, 26–30; Transcript of Oral Argument, supra note 19, at 26, 36–37. The amicus brief from the four sponsoring Senators was curiously bifurcated. See Brief of Senators Richard J. Durbin et al., supra note 5, at 2–3. The first half offered numerous pages of quotations from lawmakers in both parties about the historic, transformative, and practically apartisan sweep and pedigree of the bill, id. at 3–10, and the second half then pivoted to a pure textual analysis that made no effort to explain the relevance of the statute’s historic nature to how the Court should interpret it, id. at 11–16. And yet the suggestion behind the brief’s acclaim for the political consensus behind the law must on some level have been intended to suggest that it should be read generously, not narrowly. In her concurrence, Justice Sotomayor called on Congress to use its “tools to right this injustice,” to once and for all accomplish what lawmakers believed they already had achieved but in fact had failed to bring to fruition because of inartful drafting.26×26. Terry, 141 S. Ct. at 1868 (Sotomayor, J., concurring). Members of Congress from both parties immediately pledged to make the necessary changes to the law.27×27. See Press Release, Sen. Chuck Grassley, Grassley, Durbin Statement Supreme Court First Step Act Ruling on Low-Level Drug Offenders (June 14, 2021), https://www.grassley.senate.gov/news/news-releases/grassley-durbin-statement-supreme-court-first-step-act-ruling-on-low-level-drug-offenders [https://perma.cc/5ZJP-Q99H] (“[T]his decision doesn’t mean that nothing can be done. It’s now up to Congress to clarify the statute to unambiguously address sentencing in the cases like Mr. Terry’s.”).

The juxtaposition of the government’s changed position with the resounding loss immediately raises questions about the shift in position in the first place. Was the government’s confession of error itself an error? In his opinion for the Court, Justice Thomas accused the government of having engaged in a textual “sleight of hand.”28×28. Terry, 141 S. Ct. at 1863. The government had argued that the statute’s reference to modified “statutory penalties” referred to the “penalty scheme,” not the specific penalty provisions directly altered by the First Step Act. Id. The Act defines “covered offense” as a “violation of a Federal criminal statute, the statutory penalties for which were modified by . . . the Fair Sentencing Act.” First Step Act § 404(a). Does the stark contrast between the government’s argument and the unanimous Court’s conclusions show that the changed position was politically motivated? If the answer to this question is yes, does it matter?

The fact that October Term 2020 straddled two presidential administrations representing two different political parties with highly salient and distinct identities, at a moment of political and social unrest, unsettled the Court’s regular order by laying bare that legal interpretation is, in fact, often a function of politics.29×29. For a nuanced discussion of what is entailed in the Office of the Solicitor General changing its position, with a focus on shifts precipitated by the advent of the Obama and Trump Administrations, see Michael R. Dreeben, Stare Decisis in the Office of the Solicitor General, 130 Yale L.J.F. 541, 547–54 (2021); and infra notes 47–51 and accompanying text. Elections matter, not just for the policies the new executive branch will pursue, but also for what its lawyers will tell us and the courts about what the law requires or allows. Whether they like it or not, courts will be active participants in the political evolution represented by a new administration. The advent of this most recent one has already underscored (again) that the rhetoric and presumptions of legal continuity and transcendence are fragile and sometimes deceptive.

In this Foreword, I take October Term 2020 — a Term of transition — as an occasion to explore both the processes and the promise of what I will call regime change, or the replacement within the executive branch of one set of constitutional, interpretive, philosophical, and policy commitments with another. Given the occasion, I focus on the role of law, legal argument, and the courts in enabling or thwarting regime change and the democratic evolution it represents. Indeed, our current political transition confronts us with a central tension of our legal order, between a judicial and legal culture that valorizes stability and custom using language and concepts that sound in rule of law, and the democratic imperative that our institutions help effectuate rather than impede the political will reflected in election results.30×30. Professors Robert Post and Reva Siegel capture this tension in their essay, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373, 378–79 (2007), analyzing the practice of constitutional interpretation as coordinating commitment to rule of law and democratic self-governance. It requires us to ask: What counts as a legitimate basis for change? How reasoned versus responsive should the government’s legal and policy positions be? Are stability and democracy incommensurate values?

My basic claim will be that, in thinking through these and related questions, we ought not rush to treat disruption and change as shocks or aberrations that must be rigorously explained. Shifts in legal argument should not be met with skepticism, and they often should be credited as legitimate reinterpretations of law that, in turn, will help give rise to a new political regime. More generally, we should regard rapid evolution in legal interpretation and corresponding policy development as things to be valued, enabled, and pursued. The processes of unfurling, establishing, and perhaps eventually consolidating a new regime will extend well beyond an administration’s first change of clothes before the Court and will depend on the development of novel legal arguments and the valuation of institutional creativity. The viability of each of these dynamics, in turn, will depend upon the existence of political will on the inside to push for such innovation and political and legal patience on the outside to allow these dynamics to play out.

Valuing and pursuing these forms of change are justified, ultimately, because they help to sustain a connection between government and democratic politics. This connection should lead us to identify and then think twice about legal doctrines, institutional features, and modes of argument that slow transitions and transformations down, either intentionally or in service of objectives laudable on their face.31×31. One limited way to think about transitions is to focus on the period during an outgoing presidency when preparations are being made to transfer power. See infra notes 36–39 and accompanying text. These transition periods are critical to a new administration’s ability to hit the ground running, and the early spate of executive orders issued by President Biden required months of advanced work before he took office. See Sarah Mucha, Biden Officially Forms Transition Team, CNN (June 20, 2020, 2:34 PM), https://www.cnn.com/2020/06/20/politics/joe-biden-transition-team/index.html [https://perma.cc/WTV9-RPFZ] (noting the formation of the Biden transition team in June 2020); Lisa Rein, These Are the Experts Who Will Lead Biden’s Transition at Federal Agencies, Wash. Post (Nov. 10, 2020, 3:03 PM), https://www.washingtonpost.com/politics/biden-transition-team-federal-agencies/2020/11/10/6b4b6388-237f-11eb-a688-5298ad5d580a_story.html [https://perma.cc/H8EK-KC8Z] (noting the appointment of 500 experts to review the state of federal agencies and begin the development of policies for the new Administration). But the concept of transition I explore in this Foreword extends across years because of what is required to bring a political vision to fruition. We should be wary of the turn to legalisms that purport to advance the rule of law but that in fact inhibit the evolution of our political order. Moments of transition, such as the one through which we are living, can help to reveal how the concept of the rule of law forms part of an agonistic struggle perpetuated not just by courts, but also by political actors. The concept provides a ready-made vocabulary, well rooted in our legal culture, that serves important values but that can also be employed to stifle democratic development.32×32. As I hope will become clear, my claim is not that rule-of-law concepts are necessarily invoked in bad faith, nor that arguments about stability, consistency, reasoned elaboration, and similar values ought not be taken seriously, but rather that they can be and are used to thwart legitimate and important disruption and change. In making these arguments, I will be clear that the collection of rule-of-law legalisms I’m describing are in the main desirable features of a legal order — which is in fact part of the challenge and tension. In certain contexts, they seem required not only by constitutional baselines around which most partisans can find consensus (the importance of due process and government neutrality in individual adjudications, for example), but also by norms aimed at preventing corruption and abuse of power by high officials (walling off criminal and other law enforcement–type investigations from partisanship, for instance).

Sometimes, perhaps even often, presumptions in favor of the status quo may be wise, particularly when it comes to the exercise of executive and administrative power (my primary focus). But the orientation I take in this Foreword is to defend the use of power to bring regime change about, not without regard to institutional interests in stability, but with a view to cultivating institutions capable of making political and democratic change concrete. This orientation centers two basic principles of vital importance to the nation’s future as a polity: making the government work for the people and ensuring that the people accept the outcomes of democratic processes, even when they are outcomes with which they disagree.33×33. In their influential book, political scientists Steven Levitsky and Daniel Ziblatt identify two crucial norms that have made American democracy work: “[M]utual tolerance and institutional forbearance.” Steven Levitsky & Daniel Ziblatt, How Democracies Die 212 (2018). The first of these two is integral to this concept of regime change — that is, “[t]reating rivals as legitimate contenders for power,” id., which must entail accepting the legitimacy of their exercise of power. This bedrock assumption of our democratic order is both demanding of partisans and also increasingly at risk. What precisely is meant by institutional forbearance and how that might be in tension with the way a regime exercises power once it has power are the central themes of this Foreword. Cf. Bob Bauer & Jack Goldsmith, After Trump: Reconstructing the Presidency 18 (2020) (advocating application of a “golden rule” analysis to claims about how to constrain power: “Always imagine whether a constraint on the presidency would be legitimate if your preferred president were in office or, reciprocally, whether a conferral of presidential discretion would be legitimate if exercised by a president of another party.”).

In Parts I and II of this Foreword, I develop the concept of regime change. Part I is descriptive and presents an institutionally specific and context-dependent account by detailing the legal and policy changes brought about in the early months of the new presidential Administration. Consideration of what justifies a new administration’s change of position before the Court — whether it should occur only sparingly, or as much as necessary to reflect the administration’s values — only begins the inquiry into regime change. Legal innovation turns out to be vital to the realization of a new political order. This account thus requires an extended engagement with the relationship between law and politics, from which emerges a neorealist conception of each enabling the other.34×34. Cf. Karl N. Llewellyn, Some Realism About Realism — Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1250 (1931) (describing realism as a “mass of trends in legal work and thinking,” which includes “recognition of law as means; recognition of change in society that may call for change in law; interest in what happens; interest in effects[;] . . . [b]ut into the work of lower courts, of administrative bodies, of legislatures, of the life which lies before and behind law, the ferment of investigation spreads”).

Part II turns to justification and defends the concerted effort by executive officials to instantiate a new legal and political order, including by undoing the work of a predecessor administration. In this Part, I defend political disruption of legal and policy processes, casting skepticism on the arguments for stability and continuity often invoked by courts and commentators to slow down the exercise of power. I focus on what it can mean for a new regime to rise within the executive branch, contending that an assertive orientation to the new regime’s powers has become essential in our time to maintaining responsive and effective institutions of governance. Neither the pursuit of legal and political change through reinterpretation of the law on the one hand, nor the insistence on continuity in government on the other, has a single ideological valence. But my argument does challenge a particular, transcendent conception of the law and offer an account of self-government that depends on respect for the state — both contested positions in today’s legal debates. These positions, in turn, require engaging the important structural question with which I end this Part. Treating executive governance as necessary to fulfilling the goals of democratic politics requires exploring the relationship of such governance to the capacities of Congress. Accordingly, I consider how interbranch relations might be implicated in regime change; the phenomenon I describe cannot have meaning without reference to the regime state of the other branches.

In Part III, because of the occasion for this Foreword, I focus on the role the courts play in facilitating and mediating the processes of regime change, not just at moments of transition, but in governance more generally. This inquiry requires critical consideration of the administrative law doctrines that structure and regulate policy change and development, as well as of the Court’s rapidly evolving jurisprudence implicating the very capacity to govern. Though often couched in procedural, structural, or formal principles of law, this jurisprudence ultimately amounts to a political intervention because of the way it constrains the choices of the political branches. I argue that ideological and political preferences should be credited as justifications for administrative action, because administration is not just about rationalist thought, but also about evolving preferences.

What is more, recent jurisprudential developments that affect the capacities of government underscore that the Court itself has undergone its own regime change, and that judges can be agents of the phenomenon. We are, in fact, in a moment of regime conflict, the wages of which I explore to conclude this Part. Just as both the presidency and Congress were about to revert to Democratic hands, President Trump replaced the late Justice Ginsburg with Justice Barrett, creating a 6–3 conservative majority on the Court. Even if we acknowledge that there will be (and already have been) alliances among Justices in cases that are not predicted by ideology, and that the labels “conservative” and “liberal” contain within them distinct jurisprudential methodologies and orientations to doctrinal fields, the new array of Justices puts a fine point on the conservative identity of the judicial branch. Our particular moment and this particular Term thus offer up a stark contrast — between a new Administration and a Court with discordant theories of law, the state, and the reach of the Constitution.

I end with a Coda that considers how two developments in contemporary political culture, which also happened to buffet the Court this Term, threaten to render all of the preceding discussion superfluous. Increasingly, partisan and pitched debates over voting rights and immigration — over whether and how to set limits on the polity’s expansion — threaten a kind of regime entrenchment that would distort and even subsume the dynamics of regime change that I describe and defend. Rule of law–style claims that long have been invoked to justify such limits today barely mask a deeper impulse to exclude people from power in order to prevent regime change altogether.


* Leighton Homer Surbeck Professor of Law, Yale Law School. I am enormously grateful for the insightful feedback on drafts of this piece from Ashraf Ahmed, Daryl Levinson, Marty Lederman, Douglas NeJaime, Nicholas Parrillo, Daphna Renan, and Reva Siegel. The ideas explored in this Foreword have also been deeply shaped by two significant collaborations, with Adam Cox on the subject of the President and immigration law, and Anya Bernstein on the question of how agencies interpret statutes and how political and institutional judgment blend. Any errors or misguided observations here are of course my own. I also could not be more grateful for and impressed with the research assistance I have received from a group of highly energetic and talented Yale Law School students, including Sam Ayres, Callie Bruzzone, Colin Burke, Kayla Crowell, Beatrice Pollard, Thomas Ritz, Lexi Smith, Nate Urban, and Bardia Vaseghi. Last, I owe an enormous debt to the editors of the Harvard Law Review for their rigorous and painstaking work.