FROM EXCLUSIVITY TO CONCURRENCE Mark D. Rosen *

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1 Early stage draft of November 20, 2008 (10:51am) Please do not cite or quote without author s permission. As you ll see, I ve not yet completed the article parts remain to be written. I apologize in advance for not providing a final product. FROM EXCLUSIVITY TO CONCURRENCE Mark D. Rosen * INTRODUCTION I. THE ANALYTICS OF CONCURRENCE, AND SOME EXAMPLES A. Definitions and Examples B. Analytical Tools Same-Effect versus Same-Source Concurrence Non-Identicality Imperfect Overlap C. The Pacificus-Helvidius Debates II. THE HISTORICAL TRAJECTORY FROM EXCLUSIVITY TO CONCURRENCE A. Original Jurisdiction of the Various Federal Courts: The Road from Marbury to Ames B. Fact-Finding in Civil Adjudication: Of Juries, Judges, and Non-Article III Adjudicative Tribunals Juries and Judges Juries and non-article III Adjudicatory Tribunals.. 29 C. Adjudicatory Jurisdiction of Article III and non-article III Courts D. Legislative Power: Congress and Agencies E. Some other Contexts III. HOW AND WHY CONCURRENCE IS CREATED A. Mechanisms for Creating Concurrence Delegation Inherency Inactivity and Initiative-Taking B. Reasons for Concurrence What The Courts Have Said * Professor and Norman & Edna Freehling Scholar, Chicago-Kent College of Law, Illinois Institute of Technology. I received outstanding comments from a faculty workshop at the Chicago-Kent College of Law and additional helpful words from Allan Erbsen and Nancy Marder.

2 a. Pragmatics and Past Practice b. Efficiency Systematizing Concurrence s Benefits a. Unforeseen Circumstances b. Efficiency c. Works-Around Practical Barriers Inaction By Primarily Tasked Institution Constitutional Barriers Synergies Addressing Emergencies IV. NOT ALL OR NOTHING V. METHODS FOR ADDRESSING CONFLICTS A. Institution-Based Conflict-Resolution Principles B. Time-Based Conflict-Resolution Principles C. Multi-factor Conflict-Resolution Principles D. No-Sorting Principles VI. THE BIG PICTURE: META-NARRATIVES AND CONSTITUTIONAL IMPLICATIONS A. Meta-Narratives B. Constitutional Implications INTRODUCTION 2The same power cannot belong, in the whole to both departments, or be properly so vested as to operate separately in each. Still more evident is it, that the same specific function or act, cannot possibly belong to the two departments and be separately exercisble by each.... A concurrent authority in two independent departments, to perform the same function with respect to the same thing, would be awkward in practice, as it is unnatural in theory. James Madison, Second Helvidius Letter James Madison penned the above words when analyzing what today 2 ALEXANDER HAMILTON & JAMES MADISON, THE PACIFICUS-HEVLIDIUS DEBATES OF : TOWARD THE COMPLETION OF THE AMERICAN FOUNDING 68(MORTON J. FRISCH, ED.) (LIBERTY FUND 2007).

3 [2008] FROM EXCLUSIVITY TO CONCURRENCE 3 would be called a separation of powers question. 3 As this Article shows, Madison s basic intuition that power that is specifically allocated by the Constitution to one institution cannot be exercised by another also features prominently in discussions concerning the distribution of power as between the federal government and states (vertical federalism) and the distribution of power as between states (horizontal federalism). Indeed, the notion that constitutional allocations of power are exclusively held by the specified institution to which the power has been granted, and cannot reside concurrently in more than one governmental institution, is found in contexts apart from separation of powers and federalism for instance, regarding the Seventh Amendment s distribution of power between jury and judge. Perhaps nowhere else has Madison s view of the basic architecture of American constitutionalism proven to be so wrong. This Article catalogues and analyzes the many significant respects in which contemporary American government deviates from Madison s assumption of what I shall call exclusivity and instead adopts what Madison believes to be the unnatural and awkward state of concurrence. As regards the distribution of national powers, just consider the following few examples. Although Article II, Section 2 provides that the president shall have Power to grant Reprieves and Pardons, 4 the Court long has held that Congress has the power to grant amnesties that, the Court has acknowledged, are functionally equivalent to pardons. 5 Similarly, while the Constitution specifies only one mechanism by which the federal government can create international agreements treaties 6 most of this country s contemporary international obligations have been created outside of the treaty-making process, through so-called sole executive agreements and joint congressional agreements. 7 Concurrence exists outside the context of separation of powers. As regards vertical federalism the federal government s relation to the states though Congress has the power to regulate interstate commerce, states also have power to regulate interstate commerce. 8 In respect of horizontal federalism the relation among states it quite frequently is the case that 3 The question concerned the constitutionality of President Washington s Neutrality Proclamation of 1793: did the President have the power to interpret a mutual defense treaty to determine whether the United States was obligated to go to war to assist France, or did Congress alone have the power to do so on account of its constitutionally granted power to declare war? I discuss Madison s views as well as those of his interlocutor, Alexander Hamilton, infra at Part I.C. For an excellent discussion, see H. JEFFERSON POWELL, THE PRESIDENT S AUTHORITY OVER FOREIGN AFFAIRS (2002). 4 U.S. CONST. ART. II, 2, cl See Brown v. Walker, 161 U.S. 591, 601 (1896) (recognizing this and noting that the difference between pardons and amnesties is one rather of philological interest than of legal importance ). 6 See U.S. CONST. ART. II, 2, cl See infra Part xx. 8 See Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. 299, (1851).

4 [2008] FROM EXCLUSIVITY TO CONCURRENCE 4 more than one state has the power to regulate a given person, transaction, or occurrence. 9 And there are yet other contexts beyond separation of powers and federalism where the Constitution also has been understood as allocating power concurrently. Though the Seventh Amendment allocates adjudicatory fact-finding power to the jury, the jury is not the sole institution with this power: administrative law judges in Article I courts find facts in the very same contests where juries would have the constitutional power to fact-find, and Article III judges engage in fact-finding of the sort performed by juries when they decide motions for summary judgment and motions to grant judgments notwithstanding the verdict. To provide one last example, although the power to sue government contractors belongs to the executive branch, it does not rest exclusively there: qui tam statutes empower private citizens to sue, on behalf of the United States, anyone who has submitted a false claim to the federal government. 10 The power to sue government contractors to recover false claims accordingly rests with both the federal executive and private citizens. 11 Though commentators focusing on discrete doctrines sometimes have recognized that governmental powers sometimes overlap, 12 this is the first Article to comprehensively analyze the phenomenon of concurrence. Because the Constitution spends much of its time allocating power to specific institutions, the question of whether the power allocated is exclusively held by a single institution or instead is concurrently held by two or more institutions is pervasive. This Article s analysis of the choice between exclusivity and concurrence across multiple doctrinal contexts uncovers multiple recurring patterns that, it is hoped, can lead to a more informed consideration in the future of the choice between exclusivity and concurrence. This is important because many contested contemporary issues implicate, at least in part, the choice between exclusivity and concurrence. Here are some examples: though the Constitution vests the power to declare war with Congress, does the President have a similar power? 13 What is the relation between the Congress powers to regulate the land and naval forces and the President s Commander- 9 See Allstate Ins. Co. v. Hague, 449 U.S. 302, 307 (1981); Mark D. Rosen, Hard or Soft Pluralism?: Positive, Normative, and Institutional Considerations of States Extraterritorial Powers, 51 ST. LOUIS L. J. 713, (2007). 10 See 31 U.S.C. 3730, discussed infra Part xx. 11 Likewise, the posse comitatus doctrines allowed state and federal executive officials to compel private citizens to assist in the making of arrests and in otherwise executing a wide range of state and federal laws, exemplifying yet another instance of coordinacy: executive power that is jointly exercised by the executive branch and private sector. 12 See. e.g., Caleb Nelson, Preemption, 86 VA. L. REV. 225, 225 (2000)( nearly every federal statute addresses an area in which the states also have authority to legislate ); See, e.g., Lee H. Rosenthal, Back in the Court s Court, 74 UMKC L.R. 687 (2006) (noting that problems arising from asbestos can be handled either by legislatures or courts). 13 See Michael D. Ramsey, Presidential Declarations of War, 37 U.C. DAVIS L. REV. 321 (2003).

5 [2008] FROM EXCLUSIVITY TO CONCURRENCE 5 in-chief powers? Are there mechanisms outside of Article V by which the Constitution in effect can be amended? 14 The Article is in six parts (some that are quite short!). Part One formally defines concurrence and exclusivity and provides six contemporary instances of concurrence. Part One explains how concurrence differs from the familiar concept of checks and balance, and then introduces several analytical tools that facilitate the analysis that follows in the rest of the Article. Part One concludes by closely analyzing the complete argument for exclusivity that James Madison articulated in his famed Second Helvedius Letter, from which this Article s foreword quotes, as well as Alexander Hamilton s counterargument in support of concurrence. The next four parts identify and analyze recurring patterns that emerge from a cross-doctrinal analysis. Part Two uncovers a stunning historical pattern: virtually all contemporary contexts where power is understood to be held concurrently amount to renunciations of the Court s original view, consistent with Madison s, that the power was held exclusively by only one institution. Part Two documents the doctrinal process by which the Supreme Court has come to accept concurrence in three different doctrinal contexts. It shows that, in so doing, the Supreme Court has rejected categorical application of the principle of expressio unius est exclusio alterius. Part Three examines the how s and why s behind the switch from exclusivity to concurrence. Part Three first uncovers three recurring mechanisms by which concurrence is generated. Notably, the initiative for shifting from exclusivity to concurrence mostly has originated outside the judiciary not terribly surprising in light of Part Two s finding that courts typically start with exclusivist assumptions. Part Three also explores the reasons for the shift from exclusivity to concurrence, identifying several recurring benefits of concurrence. Part Four points out that the choice between exclusivity and concurrence is not all or nothing. There are many contexts where constitutionally allocated power is universally recognized to be exclusively held by a single institution. Further, there are some contexts where there has been a counter-trajectory from concurrence back to exclusivism. Moreover, even where there is concurrence, there typically are limits on the degree to which power can be shared among two or more institutions. Taken together, Part Five suggests that the choice between exclusivity and concurrence has not been made on the basis of a trans-substantive or categorical principle, but instead has been made on the basis of context-specific analyses. Part Five also suggests that slippery slope concerns that opening the door to concurrence could lead to complete chaos are overblown. 15 Part Five addresses one of the great anxieties that is created by 14 Ackerman; Reva Segal, ERA, Cal L. Rev. 15 For an example of such an anxiety in a context relevant to concurrence, see See Larry Alexander and Saikrishna Prakash, Delegation Really Running Riot, 93 VA. L. REV (2007).

6 [2008] FROM EXCLUSIVITY TO CONCURRENCE 6 concurrently held power: the prospect of conflict among the multiple institutions. The specter of conflict sometimes is invoked as a trump card against the conclusion that power is concurrently held. Part Five suggests that this overstates the concern by showing the multiple tools for managing conflict that are found in American constitutional law. Part Five argues that the potential of conflict is a cost of concurrence that appropriately is taken account in weighing the desirability of concurrence in a particular context, but that, at a general matter at least, it should not serve as the sole basis for deciding against concurrence. Part Six, the Article s final part, considers what are the appropriate lessons to be drawn from what the Article has uncovered. It first identifies four possible meta-narratives to describe the trajectory towards concurrence that it uncovers: (1) a healthy adaptation to changing times and needs, (2) the Court s law-on-the-books catching up with the law-in-action, (3) the natural process of entropy, or (4) the systematic extension of one set of institutions at the expense of other institutions. Of these possibilities, the fourth might require elaboration to be comprehensible at this point: virtually all instances of concurrence have made it easier for federal institutions to create law, thereby extending federal power at the expense of states and the private sector. As we ll see, all these narratives fit the action to a not inconsiderable degree. The Article then considers the constitutional implications of its findings. The mere fact that concurrence is widespread does not on its own mean, of course, that it is constitutionally legitimate. Not surprisingly, what constitutional lessons the reader draws will turn on her prior jurisprudential commitments. To be sure, this Article is not the place to engage in a debate about such foundational questions of whether the Constitution is appropriately construed on the basis of (solely) the Founders understanding, what a reasonable member of the Founding generation would have thought, text, pragmatics, history, or something else. Fortunately, though, this Article s findings should be relevant to adherents of all these approaches to constitutional interpretation. To begin, understanding an underappreciated yet widespread characteristic of contemporary constitutional doctrine should be of value to all constitutionalists. Beyond this, some, but not all, instances of contemporary concurrence will be troublesome to Originalists. Textualists will not necessarily be bothered because, as this Article shows, there are surprisingly strong textual arguments to support most if not all instances of contemporary concurrence. Those who favor any of the multiple schools of dynamic constitutional interpretation will be intrigued to find the types of pragmatic considerations that have driven the large-scale migration from exclusivity to concurrence. The fact that concurrence typically has not been initiated by the judiciary underscores, among other things, the role that governmental actors apart from courts play in determining what practices are deemed consistent with our Constitution. Finally, adherents of almost all

7 [2008] FROM EXCLUSIVITY TO CONCURRENCE 7 schools of constitutional interpretation may be encouraged to forthrightly examine the often unstated starting assumption of exclusivity that appears to be shared by many lawyers and that is reflected in such aspects of our legal culture as the maxim of expressio unius est exclusio alterius. I. THE ANALYTICS OF CONCURRENCE, AND SOME EXAMPLES A. Definitions and Examples. Concurrence refers to the situation where a given activity x can be performed by more than one institution despite the fact that the Constitution (appears to) place the power to do x in one specified institution. Exclusivity refers to the situation where a given activity x can be performed by only a single institution. By institution, I mean the different entities that are implicitly adopted by the Constitution: for example, the House of Representatives, the Senate, the Supreme Court, inferior article III courts, the President, states, juries, and citizens (the People ). My definition of institution also embraces novel institutions not identified in the Constitution, such as administrative agencies and supranational tribunals. It should be apparent from the above definition that concurrence is a different concept from checks and balances. Concurrence refers to the situation where two (or more) different each have the power to undertake x. Checks and balances, by contrast, refers to the situation where two (or more) institutions have distinctive roles in completing act x. So, for instance, the President s veto power is an aspect of checks and balances, but is not an example of concurrence. The same is true of the Senate s role in approving appointments of officers. 16 What follows by way of description, not justification are some examples of contemporary concurrence. That is to say, the fact that I discuss an example of concurrence here, and elsewhere in the Article, should not be understood as a normative endorsement of the arrangement. Having a clear understanding of current institutional arrangements, it seems to me, is useful if not essential for adherents of all schools of constitutional interpretation. What follows in the bulk of this Article, accordingly, is a description and analysis of wide-ranging phenomenon that has occurred. I discuss the normative constitutional implications of this wide-ranging practice in Part Six. Here, then, are six contemporary examples of concurrence: 1. The Constitution states that [i]n all cases affecting Ambassadors... and those in which a State shall be Party, the supreme Court shall have original jurisdiction. 17 Though the Supreme Court indeed has original jurisdiction in these cases, inferior district courts also 16 Madison draws a similar distinction in the Second Hevlidius letter. 17 U.S. CONST. ART. III, 2, CL. 2 (emphasis supplied).

8 [2008] FROM EXCLUSIVITY TO CONCURRENCE 8 have original jurisdiction over cases brought by ambassadors and in many cases brought by states. 18 Accordingly, notwithstanding the Constitution s allocation of original jurisdiction over cases affected Ambassadors and in which States are a party to the Supreme Court, district courts have concurrent authority with the Supreme Court to exercise original jurisdiction over such cases. 2. Article III of the Constitution states that [t]he judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. 19 Today, however, a significant amount of adjudication occurs in non-article III federal tribunals. 20 For example, contract and property claims against the United States are heard in a non-article III federal tribunal known as the Court of Claims, 21 and administrative agencies can hear disputes between private parties as to the compensation owed an injured maritime worker. 22 These non-article III institutions can oversee these adjudications despite the fact that contract and property claims against the United States also fall within federal district courts jurisdiction 23 and notwithstanding the fact that federal district courts have long handled maritime personal injury claims Indeed, as Professor Fallon has observed, virtually all of the kinds of cases that are heard in article III courts, including criminal cases and civil disputes arising under the Constitution, laws, and treaties of the Unites States today can be heard in non-article III federal courts See Ames v. State of Kansas, 111 U.S. 449, 467 (1884). 19 U.S. CONST. ART. III, See James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643, 646, (2004) ( Congress has often assigned disputes that appear to fall within the scope of the federal judicial power to Article I tribunals whose judges lack salary and tenure protections ); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER (1980). 21 Pfander, supra note 20, at Crowell v. Benson, 285 U.S. 22, 51 (1932). 23 Boyle. 24 Pfander, supra note 20, at Fallon, supra note?, at 923. Consider as well the various supranational adjudicatory panels that have been created under federal law. For example, whereas the conclusions of the federal agencies tasked with administering the United States anti-dumping laws typically are subject to judicial review by two Article III courts, the North American Free Trade Implementation Act creates new adjudicatory entities that are staffed by representatives of the two disputing countries. For a discussion, see Monaghan, supra note 167, at These adjudicatory entities are not Article III courts, yet they have the power to directly apply domestic American legal standards and to then issue orders directly binding federal administrative officials that are not subject to further review in Article III courts. See id at 837 (discussing Chapter

9 [2008] FROM EXCLUSIVITY TO CONCURRENCE 9 Accordingly, notwithstanding the Constitution s allocation of the judicial power to Article III courts, non-article III tribunals frequently have concurrent authority with Article III courts to adjudicate disputes. 3. The Constitution specifies only one mechanism by which the United States can create international agreements the treaty about which it states that the [President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur. 26 Many of the most important twentieth century international agreements into which the United States entered, however, were not created via the treaty process, but instead have been created by Congressional- Executive agreements, 27 which are negotiated by the President and approved by simple majorities of both Houses of Congress. The Restatement (Third) of Foreign Relations Law takes the position that any agreement concluded as a Congressional-Executive Agreement could also be concluded by treaty and notes that [t]he prevailing view is that the Congressional-Executive agreement can be used as an alternative to the treaty method in every instance. 28 A prominent example of the Congressional-Executive Agreement is the North American Free Trade Agreement, which received sixty-one supporting votes and thirty-eight nos in the Senate 29 a comfortably majority to be sure, but far short of the two thirds of Senators present that is necessary for a treaty. The agreement bringing the United States into the World Trade Organization likewise was a Congressional- Executive agreement, not a treaty. 30 Accordingly, notwithstanding the Constitution s sole specification of the treaty as a mechanism for creating international obligations, Congress has concurrent authority with the Senate to create international obligations by means of Congressional- 19 proceedings under NAFTA). 26 U.S. CONST. ART. II, 2, CL See RESTATEMENT (3 RD ) FOREIGN RELATIONS LAW 303, comment a (1987). International agreements also have been created by the so-called Sole Executive Agreements, which are negotiated by the President but subject to no congressional approval whatsoever. See id. For example, President Carter entered into a sole executive agreement known as the Algiers Accord to gain release of the U.S. diplomatic personnel who were taken hostage in 1979 in Iran. See Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573, 1608 (2007). And President Clinton negotiated an agreement with German Chancellor Schroder establishing a mechanism for handling insurance claims held by Holocaust victims. See American Insurance Association v. Garamendi, 539 U.S. 396, (2003). 28 Rest. For. Rel. Law, supra note 27, at 303, comment e. 29 Brice Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 801 (1995). 30 Id. at

10 [2008] FROM EXCLUSIVITY TO CONCURRENCE 10 Executive Agreements. 4. The Constitution states that All legislative Powers herein granted shall be vested in a Congress of the United States. 31 All legal scholars agree that many administrative agencies have virtually unfettered discretion to generate regulations that are functionally indistinguishable from statutes. 32 For example, the Supreme Court has upheld statutes that instruct agencies to regulate on the basis of public interest, convenience, or necessity, 33 to set fair and equitable prices, 34 or to set ambient air quality standards that are requisite to protect the public health. 35 Accordingly, notwithstanding the Constitution s allocation of [a]l legislative Powers herein granted to Congress, administrative agencies have concurrent authority with Congress to create the legal obligations that guide citizens actions. 5. The Constitution states that Congress shall have power to... regulate commerce... among the Several states. The United States Supreme Court has held that states also have power to regulate interstate commerce. 36 Accordingly, notwithstanding the Constitution s allocate of regulatory authority over interstate commerce to Congress, state and Congress have concurrent authority to regulate interstate commerce. 6. Congress has the power to enact laws relating to admiralty U.S. CONST. ART. I, The Court has invalidated only two statutes on nondelegation grounds, both in the same year. So, in Cass Sunstein s words, the doctrine has had one good year, and 211 bad ones (and counting). Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000). Thomas Merrill recently has argued that legislative power entails the power to make rules for the governance of society, that administrative agencies exercise precisely this power today, and that they properly do so as long as Congress explicitly delegates them this power. Merrill, supra note 54, 198, at Gary Lawson describes the status quo as one where the Court has found the intelligible principle standard to be satisfied by any collection of words that Congress chose to string together. Lawson, supra note 199, at 371. Other scholars who have noted that the non-delegation doctrine fails to curb delegations of de facto lawmaking authority to agencies include David Schoenbrod and Marty Redish. See DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION; REDISH, supra note 20, at See NBC v. United States, 319 U.S. 190, (1943). 34 Yakus v. United States, 321 U.S. 414, 427 (1944). 35 Whitman, 531 U.S. at See Cooley v. Board of Wardens of the Port of Philadelphia, 53 U.S. 299, (1851). 37 Southern Pacific Co. v. Jensen, 244 U.S. 205, 212 (1917) (stating that in the absence of some controlling statute the general maritime law as accepted by the federal courts constitutes part of our national law applicable to matters within the admiralty and maritime jurisdiction ).

11 [2008] FROM EXCLUSIVITY TO CONCURRENCE 11 and laws governing interstate disputes concerning such matters as water pollution. Yet there also is a tradition of federal common lawmaking in admiralty 38 as well as a federal common law of nuisance regarding interstate waters. 39 Accordingly, Congress and (primarily) federal courts have concurrent authority to create the rules of admiralty as well as the rules that govern many interstate controversies. B. Analytical Tools. For purposes of fully understanding concurrence, it will prove useful to introduce some additional concepts and clarifications. 1. Same-Effect versus Same-Source Concurrence. Same- Effect concurrence refers to the circumstance where two different institutions have the power to undertake x, but pursuant to different sources of power. Consider, for instance, example three above: the constitutional source of power that gives rise to Congressional-Executive Agreements is not Article II s treaty power, but instead is Article I s grants of legislative power to Congress (as well as any additional grants of legislative power to Congress outside of Article I 40 ). Same-effect concurrence hence describes the situation where two (or more) grants of power overlap such that more than one institution has the power to effectuate act x. Same-source concurrence refers to the situation where two different institutions exercise the same power. Consider, for instance, example five from above: the Constitution has granted Congress the power to regulate interstate commerce, yet (it has been held) the States have retained power to regulate interstate commerce. 41 Accordingly, two different institutions Congress and the States exercise the same power. 42 As will soon be seen, there is controversy as to whether several of the other examples of currency listed above are instances of same-effect or same-source concurrence. One might think: surely same-effect concurrence is not controversial, only same-source concurrence would be. That is not so. For example, Madison s words in the Second Helvidius letter were penned as an argument against same-effect concurrence: Madison argued that the Congress had power to interpret a mutual defense treaty under its powers to declare war and that the President could not have the same power to interpret the treaty under any of his constitutional powers because, as Madison stated, 38 American Dredging Co. v. Miller, 510 U.S. 443, 455 (1994). 39 State of Illinois v. City of Milwaukee, 406 U.S. 91, 101 (1972). 40 For instance, Congress powers under Article IV s Effects Clause could support congressional power to enter into a Congressional-Executive Agreement regarding the effect that is to be given foreign (in the sense of non-united States) judgments in state courts. 41 Cooley. 42 Though this constituted a shift from Gibbons v. Ogden, where Chief Justice Marshall embraced only same-effect concurrence.

12 [2008] FROM EXCLUSIVITY TO CONCURRENCE 12 [a] concurrent authority in two independent departments, to perform the same function with respect to the same thing, would be awkward in practice, as it is unnatural in theory. 43 Consider, as well, the recent battle between Professors Ackerman and Golove, on the one hand, and Professor Tribe, on the other, concerning the constitutionality of Congressional-Executive Agreements. 44 This too concerned the issue of same-effect concurrence, for neither the defenders nor the critic suggested that Congressional-Executive Agreements were based on the treaty power. Rather, the question was whether the power to create Congressional-Executive Agreements premised (primarily) on Congress Article I powers can coexist with, and is interchangeable with, the treaty power. But why should same-effect concurrence ever be controversial? It is not at all unusual, after all, that two institutions having different mandates and different sources of power will have overlapping responsibilities. Two answers suggest themselves. First, the activity in question frequently appears to more readily fit under one of the two powers, opening the door to arguments based on expressio unius est exclusio alterius 45 and fears that some troublesome extension of governmental powers is at work. Second, if two or more institutions have the power to do x, then it is possible that the institutions will have decide to act differently and thereby create a conflict. 46 Indeed, the prospect of conflicts frequently is deemed to be a death blow to concurrence. To say that same-effect concurrence can be (and frequently is) controversial is not to suggest that the distinction between same-effect concurrence and same-source concurrence is inconsequential. Indeed, in several areas of the law, courts and scholars have fought mightily to establish that two institutions overlapping powers are the result of same-effect concurrence but not same-source concurrence. For example, as I shall show at greater length in Part Two, a recurring controversy in the context of non-article III tribunals is whether the powers that such tribunals exercise is Article III judicial power or something else. 47 Chief Justice Marshall famously asserted that territorial courts are incapable of receiving Article III judicial power, 48 whereas the modern Court has seemingly switched tracks, concluding that Congress may authorize the adjudication of Article III business in a non-article III tribunal. 49 Professor Monaghan likewise seems 43 Madison, Second Hevidius Letter. 44 Compare Brice Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 801 (1995) with Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1275 (1995). 45 See, e.g., Tribe, supra note This concern permeates Madison s discussion. See Second Helvedius Letter at x. 47 See infra Part II.C. 48 Id. 49 Id. at 851.

13 [2008] FROM EXCLUSIVITY TO CONCURRENCE 13 content when he describes today s system of shared adjudication between agencies and Article III courts. 50 But not all agree with this. Two outstanding recent tomes one by Professor Jim Pfander in the Harvard Law Review, the other by Professor Caleb Nelson in the Columbia Law Review are both premised on establishing that non-article III tribunals do not exercise article III judicial power but instead exercise some other power. 51 That is to say, both scholars largely accept as legitimate the adjudicatory powers that are exercised by non-article III courts, but seek to show that they are instances of same-effect rather than same-source concurrence. Writing in the non-delegation context, Professors Eric Posner and Adrian Vermeule have undertaken the identical strategy as that of Professors Pfander and Nelson. Posner and Vermeule conclude that the powers exercised by agencies are fully constitutional because agencies never exercise Article I legislative Powers. 52 Though agency rule-making may be functionally equivalent to law-making so far as the citizen is concerned, Posner and Vermeule assert that rule-making cannot constitute an exercise of legislative power because legislative power refers only to the power to enact statutes. Professor Merrill concurs that agencies rule-making authority is constitutional, but he criticizes Posner and Vermeule s idiosyncratically narrow definition of legislative power 53 and concludes that the power exercised by agencies indeed constitutes legislative power. 54 In short, Posner and Vermeule embrace same-effect concurrence whereas Merrill believes that agencies and Congress are examples of same-source concurrence. As a formal matter, contemporary caselaw treats agency powers as an aspect of same-effect concurrence as it insists that Article I s text permits no delegation of those powers. 55 One might ask: why should it matter whether power is exercised as a matter of same-source or same-effect concurrence? Five points bear mentioning. Point One: The difference appears to matter to many, as shown by the fact that serious jurists and scholars have made serious efforts to establish that 50 Monaghan, supra note 167, at 873 (emphasis supplied). 51 See Pfander, supra note 20; Nelson, supra note See Eric A. Posner & Adrian Vermeule, Interring the Non-Delegation Doctrine, 69 U. CHI. L. REV. 1721, 1731 (2002). 53 Merrill, supra note 54, 198, at 2125 (noting that [t]here is no support in decisional law for Posner and Vermeule s formal definition of legislative power as the power to enact statutes and observing that [t]he possibility seems never to have occurred to anyone in a context in which it would have decisional significance and that their definition is at the very least idiosyncratic, and probably would be rejected if presented to the courts ). 54 Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 COLUM. L. REV. 2097, 2165 (2004) (arguing that the nondelegation doctrine... should be rejected and that the Court should repudiate the idea that Article I, Section 1 precludes any congressional sharing of legislative power ). 55 Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 472 (2001).

14 [2008] FROM EXCLUSIVITY TO CONCURRENCE 14 contemporary institutional arrangements are examples of same-effect rather than same-source concurrence. Their concern can be fleshed out as follows. If the Constitution goes out of its way to specify special protections for those who exercise the judicial power (life tenure and salary guarantees) and special procedures that must be followed for legislation to be enacted, how can it be concluded that the judicial power can be exercised by those who lacks those protections or that the legislative power can be exercised by means of different procedures? Allowing judicial power to be exercised outside of Article III courts or the legislative power to be exercised outside of Congress would be to sanction an end-run around the Constitution s specifications, rendering the Constitutional language mere surplusage. 56 This concern, in short, is nicely summarized and addressed by the well-known principle of expressio unius est exclusio alterius 57 Point Two: On the other hand, are the concerns enumerated above in Point One really answered by establishing that an institutional arrangement is an example of same-effect rather than same-source concurrence? Isn t the only way to really guard against the concerns voiced in Point One to conclude that same-effect concurrence is also problematic, and not to simply assert (for instance) that territorial courts exercise Article I rather than Article III power? Point Three: To the extent there is power to Point Two and I think there is what likely drives the impetus to justify a given institutional arrangement as an instance of same-effect rather than same-source concurrence is the sense that the former is a more limited license for concurrence (perhaps because it really is the case that there sometimes are two paths to the same goal). Thus, in situations where the Court (or scholars) do not feel empowered to all-out reject concurrence, insisting that they only are blessing same-effect concurrence appears to be an acceptable fall-back position. In other words, in some contexts at least, advocates of same-effect concurrence really seem to be sympathetic to exclusivity, but just can t bring themselves to embrace exclusivity s implications. Point Four: At the end of the day, perhaps the concerns laid out in Point One can be allayed by generalizing Tom Merrill s non-delegation analysis. Merrill argues that agencies properly exercise actual legislative power, thereby forthrightly defending same-source concurrence. Merrill s argument demonstrates that the Constitution s text almost always can be plausibly construed to permit concurrence even when the Constitution allocates power to only one institution. After all, one might think that Article I, section 1 provides a particularly strong textual basis for embracing exclusivity: its language that [a]l legislative Powers herein granted shall be vested in a Congress quite plausibly could be said to require that all legislative power vest only in Congress. Yet Merrill resists this conclusion because the text of the Constitution is [ ] silent on the question whether or to what extent 56 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803). 57 See, e.g., Tribe.

15 [2008] FROM EXCLUSIVITY TO CONCURRENCE 15 legislative power may be shared. 58 Cass Sunstein has made the same argument: [t]he Constitution does grant legislative power to Congress, but it does not in terms forbid delegations of that power. 59 Merrill s and Sunstein s arguments have broad implications outside the non-delegation context because, with only a handful of exceptions, 60 the Constitution s grants of power are not accompanied by prohibitions on the delegation of the allocated power. 61 It would follow that, as a purely textual matter, it is plausible to suggest that virtually all the Constitution s grants of power to a particular institution could be delegated to another institution, resulting in what Merrill calls share[d] power 62 and what this Article dubs concurrence. 63 Point Five: On the other hand, Point Four s textual argument does not really address the anxiety expressed in Point One that concurrence allows the Constitution s carefully crafted mechanisms for accomplishing x to be circumvented by (what typically is) a less demanding procedure: Congressional-Executive Agreements are pursued because there s not sufficient senatorial support for a treaty, and territorial courts rather than article III courts were created so that their judges did not have to have life tenure. The last Part of this Article Part Six will revisit these considerations regarding the distinction between same-effect and same-source concurrence, and the legitimacy of concurrence generally, after we ve had an opportunity to more fully examine the phenomenon of concurrence across doctrinal contexts and time. Finally, let me summarize two lessons from our discussion before 58 Id. at Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 322 (2000) (emphasis supplied). 60 The sole exceptions can be found in Article I, Section 10, Clause 1, which specifies a handful of actions (such as entering into treaties and coining money) that federal institutions may undertake but that States may not. That the activities identified in Clause 1 are flatly prohibited to states, and may not be delegated to states, is all but impossible to deny on account of the Constitution s next two clauses, which specify activities that states shall not do without the Consent of Congress. See U.S. CONST. ART. I, 10, CL. 2 & CL For an extended critique of delegation, see Alexander & Prakash, supra note Id. at Furthermore, Merrill appears to be of the view that there sometimes can be shared powers even without delegation. Merrill believes that institutions apart from Congress have no inherent legislative power (the anti-inherency principle, id. at 2101), and that there accordingly can be shared legislative powers only pursuant to congressional delegations, on account of Article I, Section 1's specification that the legislative powers herein granted are vested in Congress. See id. ( the reference to legislative powers herein granted can be understood to limit the anti-inherency principle to those powers granted in Article I itself. ). This suggests that legislative powers granted to Congress outside of Article I (perhaps under Section 5 of the Fourteenth Amendment, for instance) may be shared by institutions apart from Congress even without a delegation from Congress. 63 Indeed, the broad implications of Merrill s argument vis-a-vis delegations of other powers led Larry Alexander and Sai Prakash to pen an extended slippery slope discourse. See Larry Alexander and Saikrishna Prakash, Delegation Really Running Riot, 93 VA. L. REV (2007). I respond to their argument later in this Article.

16 [2008] FROM EXCLUSIVITY TO CONCURRENCE 16 concluding this preliminary discussion of same-source versus same-effect concurrence. First, as shown by the examples of non-article III tribunals and agencies rule-making powers, there sometimes is controversy as to whether a contemporary institutional arrangement is an instance of same-source or same-effect concurrence. For example, as regards the adjudicatory powers of Article I and Article III courts, Chief Justice Marshall and Professors Pfander and Nelson are committed to same-effect concurrence, whereas the modern Supreme Court and Professor Monaghan seem comfortable with same-source concurrence. 64 Second, as shown by the controversy concerning Congressional-Executive Agreements, there sometimes is controversy over whether even same-effect concurrence is legitimate or whether exclusivity is the only permissible power arrangement. 2. Non-Identicality. A second principle relevant to this Article s analysis is that concurrence does not mean that the two institutions acts are wholly identical. This non-identicality principle is true of both same-source and same-effect concurrence. In general, the acts of institutions with concurrent power are non-identical as regards both (1) what must happen for the act to come into existence and (2) what must happen for the act to be negated. There sometimes are additional important distinctions between the concurrent acts. 65 This principle of non-identicality should be self-evident, but it has surprising illuminating effect. As an example of non-identicality regarding same-source concurrence, though both Congress and the states have power to regulate interstate commerce, congressional regulations and state regulations of interstate commerce differ in several respects. For one, different entities must vote (Congress versus state legislatures) for each act (legislation regulating interstate commerce) to be created. Second, the Supremacy Clause establishes a conflict-resolution principle under which federal regulations trump state regulations. For an example regarding (what contemporary case law considers to be) same-effect concurrence, administrative regulations also are not identical to statutory commands. Though they share much in common for instance, from the vantage point of most citizens, the legal obligations they impose are indistinguishable administrative regulations do not appear in U.S. statutes, they also are brought into existence by the actions of two different institutions (Congress versus the agency), and finally regulations typically are easier to amend or rescind than statutes. Congressional-Executive Agreements and Treaties provide a partial exception to the general principle of non-identicality. Although they differ insofar as they are created by different mechanisms (two-thirds of present Senators in the case of treaties versus majorities of both houses in the case of 64 Relatedly, there exists some areas of concurrence where the source of a particular governmental entity s powers to act is still a question of controversy federal common law, for instance. 65 Court of Claims point

17 [2008] FROM EXCLUSIVITY TO CONCURRENCE 17 Congressional-Executive Agreements), the Congressional-Executive Agreements and Treaties presently are understood as being equally resilient to alteration. For instance, both are subject to the last-in-time rule and can be superseded by later international agreements or treaties Imperfect Overlap. A third relevant principle is that the existence of concurrence does not necessarily entail perfect overlap between the powers of the two institutions. To the contrary, there frequently is imperfect overlap between the two institutions. For example, the early twentieth century case of Missouri v. Holland established that treaties may deal with a subject that Congress could not regulate by legislation in the absence of a treaty. 67 Though the scope of Congress powers has significantly expanded since during the twentieth century and so, for instance, the subject addressed in the Holland that was then viewed as falling outside the scope of Congress commerce clause powers today undoubtedly would be deemed as being subject to the commerce clause there still may be some subjects relating to international relations that do not fall within Congress enumerated powers. With respect to these matters, only treaties can be used, and there accordingly is imperfect overlap between the treaty power and Congressional- Executive Agreements. C. The Pacificus-Helvidius Debates. The earliest exchange concerning the choice between exclusivity and concurrence and, perhaps surprisingly, to date still the most extended discussion of this issue is found in the exchange between Alexander Hamilton and James Madison known as the Pacificus-Helvidius Debates. The occasion for the debate was President Washington s issuance of the Neutrality Proclamation of In declaring the new nation s neutrality vis-a-vis France s war with Great Britain and Holland, the Washington s Proclamation interpreted America s Treaty of Alliance with France of The question dividing Hamilton and Madison was whether the President had the authority to interpret the Treaty. Madison took the exclusivist position, arguing that only Congress had power to do so by virtue of its power to Declare war. Hamilton defended the Proclamation s legality, adopting what this Article dubs concurrence in arguing that both the President and Congress had the power to interpret the Treaty. Let us first look to Hamilton s position. He acknowledged that Congress had the power to interpret the Treaty pursuant to its power to Declare war, but urged that the President also had the power to interpret the Treaty under the President s executive powers: [H]owever true it may be, that the right of the Legislature to declare war includes the right of judging whether the Nation be under 66 See Rest. For. Relat. 303, comment j. There is uncertainty as regards the scope of the President s power to unilaterally rescind treaties. [elaborate] 67 Id. at comment c, citing to Missouri v. Holland, 252 U.S. 416 (1920). 68 For a good introduction, see DEBATES, supra note 2, at vii.