CVSG CP - Michigan 7 2024 BFHR

CVSG CP – BFHR
Notes
Some good work in this file from Dede and Sam. I think the net benefits could use a little more development for the start of the season, but there is a strong set of arguments in this file. There should be some strong application to this topic.
Top Shelf
1NC---CVSG CP
The United States federal judiciary should issue a call for the views of the U.S. Solicitor General regarding __________________. The Office of the U.S. Solicitor General should find in favor of granting certiorari and appropriate legal change.
Prior consultation with the Solicitor General stops the destabilization of rule of law.
Dreeben ‘21 [Michael R; January 15; received his J.D. degree from Duke University, previously served as Deputy Solicitor General, Distinguished Visitor from Government and previous adjunct professor at Georgetown University Law Center, Lecturer on Law at Harvard Law school; Yale Law Journal Forum, “Stare Decisis in the Office of the Solicitor General,” https://www.yalelawjournal.org/pdf/DreebenEssay_kdn1z8ge.pdf] dedeepya
No changes in position surfaced in OSG’s briefs for the next several Supreme Court Terms either. Zero. And then an unusual cluster of changes during President Obama’s second term caught the Court’s eye. First, in Kiobel v. Royal Dutch Petroleum Co., 32 the Government shifed positions in a controversial case under the Alien Tort Statute.33 At oral argument, Justice Scalia pounced. Addressing the Solicitor General, Justice Scalia said “that is the 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 . . . ?”34 When the Solicitor General explained that the new position sought to balance competing interests—protecting U.S. companies from liability abroad and “ensuring that our Nation’s foreign relations commitments to the rule of law and human rights are not eroded”35—Justice Scalia retorted that “it was the responsibility of your predecessors as well, and they took a different position. So . . . why should we defer to the views of . . . the current administration?”36 The Solicitor General’s response—“because we think [those views] are persuasive”—did not satisfy the Chief Justice, who also shared Justice Scalia’s concerns: “Your successors may adopt a different view,” he said, and “whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”37
That was not the only rebuke that Term. Two months later, the Chief Justice made waves in the Supreme Court bar by upbraiding an Assistant to the Solicitor General for OSG’s explanation of its change in position in an ERISA case, U.S. Airways, Inc. v. McCutchen. 38 In the middle of the Government’s argument as amicus curiae, the Chief Justice interrupted to say:
Counsel, . . . the position that the United States is advancing today is different from the position that the United States previously advanced. . . . You say that, in [the] prior case, the Secretary of Labor took this position. And then you say that, upon further reflection, the Secretary is now of the view—that is not the reason. It wasn’t further reflection.”39
Instead, he said, “it would be more candid for your office to tell us when there is a change in position, that it’s not based on further reflection of the Secretary” but that “there has been a change [in the Secretary].”40 The Chief Justice then added: “We are seeing a lot of that lately,”41 which he found “a little disingenuous.”42
Later in the Term, Justice Ginsburg got into the act. Questioning the Assistant to the Solicitor General arguing a Federal Tort Claims Act case, Levin v. United States, 43 Justice Ginsburg noted that his argument was not “always the government’s position”; in fact, in an earlier case, the Government had taken the opposite position now presented by his petitioner.44 “What occurred to turn on the light for the Government?” Justice Ginsburg asked.45 When the Government’s counsel sought to minimize the importance of OSG having advanced the opposite argument in the prior case, three Justices—Justice Kagan, Justice Scalia, and the Chief Justice—all pointed out that the Court had relied on the Government’s position in the prior case, which it had won.46
These critiques have a variety of possible explanations. Some Justices may have disagreed with the new position. Others may have been irked at the explanation for the change. Still others may have taken umbrage that the Government would flip its argument for strategic reasons. At least part of the Court’s reaction, however, seems to reflect an expectation that OSG will take good care in formulating its positions so that it will adhere to its own positional “precedent” or risk undermining its credibility with the Court.
Only in one later brief did the Obama Administration expressly acknowledge that OSG had changed its position at the Supreme Court. In Puerto Rico v. Sanchez Valle, 47 the Court was asked to decide whether sequential prosecutions for the same offense by Puerto Rico and the Federal Government were permissible under the Double Jeopardy Clause’s dual-sovereignty doctrine. Two decades ago, the Government’s briefs said yes; but in the Sanchez Valle they said no—with the explanation that “[t]hose [prior] briefs do not reflect the considered view of the Executive Branch.”48 No Justice reacted to the Government’s change in position, and the Court agreed with it by a 7-2 vote.49
Thus, for the Obama-era OSG, in the vast array of cases, it was literally true that plus ça change, plus c’est la même chose. 50
B. The Trump Administration’s Changes in Position
The arrival of the Trump Administration heralded a different story. A shift of party in the White House can catalyze positional changes, given differences in personnel, policy, and legal philosophy. And the Trump Administration’s move into OSG’s quarters featured all three differences.
In the Trump Administration’s first full Term in the Supreme Court, OSG made four major changes in position in high-profile cases: Epic Systems Corp. v. Lewis, 51 Husted v. A. Phillip Randolph Institute, 52 Janus v. American Federation of State, County, and Municipal Employees, 53 and Lucia v. SEC. 54 All four involved significant issues. Epic Systems held that workplace arbitral agreements that precluded collective litigation overrode statutory labor rights to engage in concerted activities. OSG reversed the position it had taken on behalf of the National Labor Relations Board just months earlier and argued against labor protection.55 Husted held that a federal voting-registration statute did not preclude a State’s purge of the voting rolls triggered by a person’s failure to vote. OSG’s support for that position discarded a fifeen-year-old Department of Justice position.56 Janus overruled a forty-year-old precedent to hold that public-sector-union agency fees violated the First Amendment rights of objecting nonunion members—and the Trump Administration flipped the position the Obama OSG had taken just two years earlier in support of that precedent.57 And in Lucia, OSG reversed the position the Government had taken in lower courts in that very case to argue that the SEC’s method of appointing its Administrative Law Judges was unconstitutional.58
These reversals were abrupt and appeared strikingly at odds with institutional norms. This was especially true in Epic Systems, which rejected a firmly held position of the National Labor Relations Board, and Janus, which asked the Court to overturn over forty years of precedent and thus threatened to destabilize the law. Two of the reversals prompted the New York Times to speculate that “[t]he Trump administration may be headed for trouble” by “twice switch[ing] sides in important Supreme Court cases.”59 But in fact, OSG prevailed in all four cases. And as one commentator astutely observed in describing these events in detail, “[s]urprisingly, the [J]ustices seemed incurious about these reversals and made hardly any fuss when the solicitor general or one of his deputies or assistants appeared in court to defend them.”60 The Solicitor General’s briefs largely explained the changes as reflecting reconsideration by the new Administration— nothing more.61 And apart from a direct challenge from Justice Sotomayor to the Solicitor General in oral argument in Husted, 62 the changes went by virtually unremarked.63
Why so little comment compared to the Obama-era changes? Perhaps the muted response reflected the Court’s acceptance that “of course” a new administration will take new views. Or perhaps some Justices simply agreed with OSG’s new positions, while others wanted to engage with those positions on the merits rather than shadow-box with OSG. But a third possibility exists: OSG’s change of position on its interpretation of the law, if explained candidly, is simply not worthy of comment to the Court.
iii. when should the solicitor general change positions? normative and practical considerations
I now turn to how OSG should approach whether to change a position it had previously taken in the Supreme Court when it concludes that it was previously wrong on the law. My focus is not on agreement or disagreement with the specifics of what OSG determined on the law in the Obama and Trump Administrations. Nor does it turn on a won-lost score card. The Solicitor General must decide whether to change a legal position without knowing how the Court will react; OSG can surmise, but it has no crystal ball. And urging a position may itself affect the outcome. Rather, the question is what general standards the Solicitor General should apply—and, in particular, whether any presumption should exist against or in favor of altering the Government’s position when OSG concludes that its prior position is wrong. Several considerations support the conclusion that, unlike judicial stare decisis, which “must give way only to a rationale that goes beyond whether the case was decided correctly,”64 Solicitors General should refrain from providing their correct view of the law to the Court only in the face of special countervailing circumstances.
That is not necessarily the traditional view. Justice Elena Kagan, who served as Solicitor General under President Obama, and Paul Clement, who served as Solicitor General under President George W. Bush, discussed this issue at an American Law Institute event in May 2018. 65 To a remarkable extent, the two former Solicitors General agreed on when a new Solicitor General should reverse positions previously taken by OSG in the Supreme Court: not very much. Justice Kagan said: “[A]t least for me, the office was very clear that you were supposed to think long and hard, and then you were supposed to think long and hard again, before you changed anything.”66 Her first reaction to some existing positions was “I don’t think I would want to do it that way,” but OSG “is supposed to be serving . . . the long-term interests of the United States, not any one President,” and “[t]he credibility of the office in great measure depends” on courts having that perception.67 She concluded that “[a] change in positions is a really big deal that people should hesitate a long time over. Which is not to say that it never happens. . . . But the bar should be high.”68 Paul Clement largely agreed. He articulated a “presumption that things are not going to change . . . If both administrations are looking out for the long-term interests of the executive branch, they really shouldn’t change that much.”69
Perhaps that is so in the aggregate. But a strong argument exists that, if OSG is convinced that that its earlier position on a particular issue is legally wrong, it should apply the opposite presumption. That is, OSG should operate with a presumption that it will present its current view of the law to the Supreme Court— even if that represents a change of position.
A. OSG Should Operate with a Presumption in Favor of Providing the Court with Its Current View of the Law
At least four considerations support a presumption in favor of OSG presenting its current, rather than former, position when it is convinced that its prior view was wrong. These reasons focus on the Solicitor General’s institutional role as a litigant and the differences between OSG positions and judicial decisions.
First, OSG’s function is quite different from that of the courts. The judicial power presupposes adherence to precedent. Quoting Alexander Hamilton, the Chief Justice has observed that “[a]dherence to precedent is necessary to ‘avoid an arbitrary discretion in the courts.’”70 In that sense, stare decisis is an intrinsic feature of the judicial power under Article III. But no analogous principle of stare decisis is intrinsic to the exercise of executive power under Article II. When OSG speaks to the Court, it presents the litigating position of the executive branch. Of course, OSG should generally represent the interests of the entire government and people of the United States.71 As the Supreme Court has observed, OSG is expected to speak with “a voice that reflects . . . the common interests of the Government and therefore of all the people.”72 But OSG need not follow its own precedent to speak in that voice and perform its executive-branch function. Instead, OSG plays that role as long as it remains the centralized actor in government litigation before the Court and weighs the interests of the public and the executive branch in taking positions before the Court.73
Second, stare decisis serves an instrumental purpose for the Supreme Court—sustaining public confidence in the integrity of its decisions—that does not have a precise counterpart for the Solicitor General. By adhering to past decisions, the Court reassures the public that the law turns on principle rather than personality.74 This is essential for the Court because, unlike OSG, whose role is to advocate for what the law should be, the Court’s constitutional role is to say what the law is. 75 And while stare decisis communicates that judicial decisions are not the product of the “proclivities of individuals”76 who are temporary occupants of office, the Solicitor General is a political appointee who is always a temporary occupant of office. The Chief Justice has noted that “[w]e do not have Obama judges or Trump judges, Bush judges or Clinton judges.”77 But we do have Obama, Trump, Bush, and Clinton Solicitors General. The Solicitor General is appointed in a particular administration and will rarely outlast it. Of course, by tradition and culture, the Solicitor General has a special relationship to the Court and a special obligation to the rule of law.78 But the chain of command—from President to Attorney General to Solicitor General—reinforces an additional institutional reality of the Solicitor General’s role. The proclivities of individuals, in a sense, come with the job.
Third, the judicial stare decisis interest in preserving the “stability” of the law79 is absent when speaking from an advocate’s position. Binding law produces reliance interests that stare decisis protects. But OSG’s views are not binding law. It is true that within the executive branch, sound reason exists to consider OSG’s submissions to the Court as stating the position of the United States on issues of constitutional or statutory interpretation. During my time in OSG, I always understood the Solicitor General’s submissions to supersede contrary statements of other Justice Department officials. What OSG said to the Court established precedent that executive agencies and Department of Justice (DOJ)-litigating components should follow, unless supplanted by the President, the Attorney General, or OSG itself.
But that effect within the government flowed from the importance of assuring the Supreme Court that when OSG speaks to it, the Court can rely on its statements as the Government’s position—not just that of a particular official. As the Court has stated, “[a]mong the reasons for reserving litigation in this Court to the Attorney General and the Solicitor General, is the concern that the United States usually should speak with one voice before this Court.”80 And the need for the Government to speak with one voice results in extensive interagency processes to ensure that OSG’s positions reflect all relevant views and are fashioned with an eye towards establishing internally binding positions. I participated in numerous meetings at which officials hammered out positions and argued over differing views, and Solicitors General displayed one of the most important attributes of the job: to listen. But the Solicitor General then followed with an equally important role: to decide. Agencies and other DOJ components could appeal to the Attorney General (they rarely did and were even less ofen successful). But if the Solicitor General’s position stood, it represented the position of the United States.
Even still, those positions are not “law” in the sense that they can produce true reliance interests. Justice Jackson’s view of the Court that “[w]e are not final because we are infallible, but we are infallible only because we are final,”81 does not apply to OSG—the Solicitor General is neither infallible nor final. Even if OSG crafs its positions with care, integrity, and dedication to the rule of law, the Supreme Court may (and ofen does) reject its views.82
Finally, when the Court has not resolved an issue—as will be true in the universe of cases under consideration here in which OSG has freedom to revisit its prior view—the Supreme Court is best served by hearing the strongest and best supported arguments from a candid advocate. While the Supreme Court will of course independently evaluate a legal issue, it always benefits from candid advocacy. That duty of candor is amplified for OSG, which has a special relationship to the Court as a coordinate branch of government. Telling the Court what the Government regards as the right answer is an important part of that function, and a candid presentation of its views—even if they depart from a predecessor’s (or even the incumbent Solicitor General’s own prior views)—furthers OSG’s role as counsel, advisor, and exponent of the rule of law in submissions to the Court.
Those considerations support the notion that OSG should approach its task with a much greater openness to abandoning a prior position than a court would have, if the Solicitor General concludes that the position was legally incorrect. It is likely, in fact, that OSG should employ a presumption that it will furnish the Court with a new and revised position if it believes that its prior position was wrong.
Extinction.
Bessler ’21 [John; 2021; Professor of Law at the University of Baltimore School of Law, Professor at the Georgetown University Law Center, J.D. from the Indiana University School of Law, M.ST. from the University of Oxford, M.F.A. from Hamline University, BA from the University of Minnesota; Santa Clara Law Review, “The Rule of Law: A Necessary Pillar of Free and Democratic Societies for Protecting Human Rights,” https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2917&context=lawreview] dedeepya
As history shows, shockingly horrific - even genocidal - consequences can flow from a societal breakdown of the Rule of Law. 420 Just consider Nazi Germany and The Holocaust, 421 the Rwandan genocide, 422 "ethnic cleansing" in Bosnia-Herzegovina, 423 and all of the atrocities committed by the regimes in Turkey, Syrian and Iran. 424 In sharp contrast, the ideal of the Rule of Law, one articulated long ago, is that everyone will be treated fairly and equally by the law. 425 A Rule of Law system puts people front and center in their own governance, divides power to prevent its abuse, 426 insists on equal application of the laws, and requires an independent judiciary and skilled lawyers 427

Preview shortened. Download the file for the full document.