The Unconstitutionality of Unfinished Receiver Bans – Jamie G. McWilliam

Posted by on Mar 26, 2022 in Per Curiam

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The Unconstitutionality of Unfinished Receiver Bans

Jamie G. McWilliam[1]



There is a long and storied tradition in the United States of privately manufacturing firearms. In fact, at the time of the founding, there were no large-scale firearm manufacturers. Rather, prospective firearm purchasers would either have to make the weapon themselves or find a blacksmith to create a one-off firearm for them.[2] Private firearms were very precise—much more so than what governments could typically afford to provide for their own troops. They were so precise, in fact, that ammunition would have to be made at home to custom match the individual firearm.[3]

In the past, making a firearm at home was an arduous process. A barrel would have to be hammered out of an iron sheet and then welded.[4] The stock would be hand carved from wood.[5] The firing mechanism would have to be fashioned from iron.[6] And the gunpowder for ammunition would be made using foraged sulfur and the charcoal from campfires. This was a time-consuming process that more closely resembled the craftsmanship of an expensive mechanical watch than the computer-controlled machining of the firearm factory today.

Some still engage in this historical process of firearm building.[7] Today, though, the prospective firearm manufacturer has less laborious options for doing so. They can purchase components to build a firearm from pre-built parts.[8] They can also print firearms using one of many commercially available 3D printers.[9] The relative ease with which firearms can be made using modern technology has led to the concern that convicted felons may circumvent their inability to purchase a firearm by making one at home.[10] In response, a number of states have introduced laws to limit the ability of citizens to construct their own firearms.[11]

Given the intriguing technology involved, the legal implications of 3D printed firearms and laws related to them have captured the attention of commentators and scholars.[12] However, a more common, yet less flashy, method has gone largely under the radar: The uses of an unfinished receiver (colloquially known as an 80% lower). This paper examines the constitutionality of legal restrictions on the use of unfinished receivers. Many arguments against such restrictions are based on equal protection or due process,[13] but this paper will focus on their Second Amendment implications.Part I of this paper examines unfinished receivers and laws regulating them. Part II lays out the proper way to review Second Amendment restrictions. Part III uses this review framework to argue that bans on unfinished receivers are unconstitutional.

I. Unfinished Receivers and Their Legal Context

To function, a firearm generally must have a receiver (sometimes split into a lower and upper receiver), a firing assembly, a chamber, and a barrel.[14] During operation, the receiver accepts ammunition, the firing assembly uses a firing pin to strike the primer of the ammunition in the chamber, and upon firing, the bullet travels down the barrel towards the target.[15] When a firearm is broken down into its constituent parts, under current federal law, only the lower receiver is legally classified as “the firearm.”[16] This means that purchasing a lower receiver bears all of the legal restrictions of buying a completed firearm, while purchasing any other component bears none.

Unfinished lower receivers, officially labelled “receiver blanks” by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), require machining at home to transform them into a usable firearm receiver.[17] When the unfinished receiver is purchased, it is little more than a chunk of metal or polymer in the vague shape of a lower receiver.[18] Only after milling out the cavity for the firing assembly, and drilling holes for the safety lever, hammer pin, and trigger pin, can the lower receiver be installed with the requisite components to complete the firearm.[19] Many suppliers of unfinished receivers also sell jigs and other tools to make the job easier for the home manufacturer.[20] Still, each of these steps require some level of sophisticated machinery, such as a mill, router, and drill press.

Because the unfinished receiver is purchased in an unusable state, the ATF does not consider it to be a firearm.[21] This means that purchasing one does not require a background check,[22] that a Federal Firearms License (“FFL”) is not required to sell one,[23] and that serialization is not federally required.[24] Further, there are no federal restrictions on finishing the machining of the lower receiver and assembling it into a complete firearm. The Gun Control Act of 1968[25] requires a license to manufacture only with the intent to sell, so manufacturing a firearm for personal use without an FFL is legal under current federal law.[26] Because of this, unfinished receivers allow a knowledgeable individual with machining tools to build a fully functioning, unserialized firearm at home.

Since firearms built this way are unserialized, they are more difficult to trace than factory-built ones, or even to prove the existence of.[27] Some have argued that this quality makes them more likely to be used in a crime and have pushed for laws banning the home-construction of firearms.[28] Advocates of these laws have labelled unserialized, home-built firearms “ghost guns” because they are supposedly untraceable or invisible to the law.[29]

In response to these lobbying efforts, a handful of states have enacted laws to restrict access to home-built firearms.[30] Some states have taken a modest approach, simply requiring home builders to serialize their firearms.[31] Others have acted more aggressively, criminalizing the mere possession or sale of an unfinished receiver.[32]

California, for example, requires any home firearm builder to apply to the California Department of Justice for a unique serial number for their weapon.[33] They ban the sale or transfer of any home built firearm that has not received a serial number.[34] California also requires any sale of a “firearm precursor part” (including unfinished receivers) to be conducted through licensed vendors, pursuant to a background check.[35] Thus, while not outright banning them, California treats incomplete lower receivers more like operational firearms.

On the other end of the spectrum, in 2021, Nevada enacted one of the strictest legislations on home-built firearms to date.[36] The new law makes it a crime to import or sell an unfinished and unserialized frame or receiver.[37] It also criminalizes selling, or simply assembling, an unserialized firearm.[38] Violations of the new law are classified as a gross misdemeanor for first time offences, and felonies for subsequent offenses.[39] Unlike California’s laws, which seek to expand typical firearm regulations to firearm components, Nevada’s law is intended to operate as a total ban on home-built firearms.

Most other states that have enacted legislation relating to unfinished receivers impose restrictions falling somewhere between California’s and Nevada’s. For example, the New York legislature passed the Scott J. Beigel Unfinished Receivers Act, which criminalizes possession of an unfinished receiver except for licensed gunsmiths.[40] Connecticut allows sales of unfinished receivers only between FFLs and prohibits those barred from owning firearms from possessing unfinished receivers.[41] The District of Columbia bars possession or transfers of unfinished receivers.[42]

The laws outlined above all restrict firearm ownership in some way. They limit the ability to acquire a firearm by manufacturing or assembling it,[43] and in some cases even bar the purchase of privately manufactured firearms.[44] How then, do these laws interact with the Second Amendment’s guarantee that “the right of the people to keep and bear Arms, shall not be infringed”?[45]

II. Reviewing Second Amendment Restrictions

The Supreme Court has yet to provide a definitive test that can be applied to all Second Amendment restrictions. In fact, for over two-hundred years, the Court said little on the subject.[46] Then, in 2008, the Court decided District of Columbia v. Heller, in which it confirmed that the Second Amendment included an individual right to self-defense.[47] Just two years later, in McDonald v. City of Chicago, the Court found that the Second Amendment is incorporated against the states.[48] However, in each of these cases, the Supreme Court failed to articulate a general standard of review for Second Amendment regulations. Rather, the Court simply noted that while rational basis would be inappropriate, some limitations to the right to keep and bear arms could be presumptively constitutional.[49]

This has led to a deep divide among scholars, practitioners, and even judges, as to the appropriate methodology for evaluating Second Amendment claims.[50] Out of this divide, however, and in the Supreme Court’s silence, the circuit courts have advanced a general framework that is remarkably consistent in theory, even if the circuits vary in its application.[51] Circuit courts generally apply a two-part test, in which courts first ask “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee” and if it does, then ask whether the restriction passes a certain level of scrutiny.[52]

It is within these steps that the divide becomes clearer. Step one sometimes involves a historical analysis that looks to the intended scope of the Second Amendment at the time of the founding.[53] Yet other scholars have suggested that “originalism has had a limited role in post-Heller Second Amendment litigation.”[54] Step two breaks down even further. Because Heller declined to apply a specific standard of scrutiny—beyond barring rational basis review[55]—circuit courts have been free to apply any heightened level they choose. In the view of some judges, post-Heller cases have been nearly unanimous in finding that intermediate scrutiny is always appropriate when considering Second Amendment regulations.[56] Others disagree, and have asked how close a law comes to the “core” of the Second Amendment right to determine whether to apply intermediate or strict scrutiny.[57] As this disagreement shows, there is no settled test for determining either the scope of the Second Amendment or the appropriate level of scrutiny to apply to regulations of its right “to keep and bear arms.”[58]

Nevertheless, Supreme Court precedent can be instructive in determining how to properly utilize the circuit courts’ two-part tests. In determining whether an individual right to bear arms for self-defense was included within the scope of the Second Amendment, the Court in Heller conducted a historical analysis.[59] It first looked to the post-ratification commentary, and subsequently to caselaw both preceding and following the Civil War.[60] The Court placed great weight on the contemporary interpretations that “[t]he right to self defence [sic] is the first law of nature,”[61] as well as later interpretations that the Second Amendment right appeared to be a personal one.[62] Because the Supreme Court in Heller and its progeny analyzed the scope of the Second Amendment in its historical context, step one of the circuit courts’ two part tests should be interpreted as many rightly have: as a question of history.[63]

Step two ostensibly complies with Heller’s use of tiered scrutiny over any sort of “judge empowering interest balancing inquiry.”[64] Nonetheless, there is some scholarly consensus that, in practice, circuit courts “have effectively embraced the sort of interest-balancing approach that Justice Scalia condemned, . . . applying it in a way that . . . leads to all but the most drastic restrictions on guns being upheld.”[65] This standard, which more closely resembles the rational basis test that the Court expressly disavowed in Heller, is clearly in tension with Supreme Court precedent.[66] A better application of step two, in which a court asks how close to the “core” of the Second Amendment a law encroaches,[67] can also be determined from Heller. There, the Court explained that “the sorts of weapons protected were those in common use at the time.”[68] Later cases have elaborated that the relevant time is that of the judicial review.[69] This standard, which the Court has reiterated in subsequent cases,[70] has been accepted by many lawyers as determinative.[71] Therefore, the appropriate standard for how close a law is to the core of the Second Amendment—and subsequently the required scrutiny—is how common the regulated weapon or conduct is. This standard allows those arms protected by the Second Amendment to evolve as technology progresses, placing the amendment on equal footing with others in the Bill of Rights.[72]

This version of the two-part test brings the circuit courts’ case law into harmony with the Supreme Court’s precedent in Heller and McDonald. Thus, a proper formulation of the two-part test can be stated as follows: in step one, a court asks whether under the historical understanding of the Second Amendment, an activity is within the scope of the amendment; in step two, a court asks whether the regulated activity is a common one today,[73] and if so, applies strict scrutiny to the challenged law.

III. Bans on Unfinished Receivers Are Unconstitutional

To evaluate the constitutionality of these state regulations of unfinished receivers, the first question is whether the laws fall within the guarantee of the Second Amendment.[74] A historical analysis is necessary to determine whether the regulated conduct has historically fallen outside the scope of the amendment.[75]

At the founding, there was no centralized firearm manufacturing industry. Rather, individual blacksmiths crafted firearms for sale, and every gun was handmade and unique.[76] Even Remington Arms, one of the largest firearm manufacturers today, began life when its founder, Eliphalet Remington, began hand-building rifles in 1816.[77] It was not until the mid-nineteenth century that names such as Colt, Winchester, and Smith & Wesson brought large-scale production to the world of firearms.[78]

Those that crafted earlier firearms were not necessarily gunsmiths by trade. In fact, many were primarily employed as blacksmiths, craftsmen, or even professionals.[79] Anthony Jankofsky, a locksmith from South Carolina, advertised that he created guns on the side in 1777.[80] Meanwhile, Ignatius Leitner, an attorney from Pennsylvania, advertised in 1800 that besides drawings “deeds, mortgages . . . and administrators accounts,” he also made “rifles, still cocks . . . [and] gun mountings.”[81] These advertisements illustrate the strong tradition of gun-making in early America as “primarily a civilian activity.”[82]

The framers of the Second Amendment understood this tradition to be within its ambit. One contemporary delegate to the Continental Congress noted his opinion that “Americans ought to be more industrious in making [firearms] at home.”[83] This general view by the framers was informed by their experience in the Revolutionary War, in which “gun-making at home was essential to the Continental Army.”[84]

Further, this tradition did not just include those smiths who hammered components from raw iron. Rather, just as it is today with unfinished receivers, it was often more practical and efficient for home gun-makers to assemble pre-made components than to start with raw materials.[85] The colonial-era home firearm-builders purchased firing mechanisms from continental Europe, barrels from England, and stocks from local carpenters.[86] Over two-centuries have passed since then, and technology has advanced. Today, firearm-builders purchase unfinished receivers, mill them out, and assemble them with a trigger assembly, stock, upper receiver, and barrel, to build an AR-15. The technological advancements, however, do not remove these components from the tradition of home gun-making that is protected by the Second Amendment.[87]

The tradition of home firearm manufacturing was an integral part of what it meant at the founding “to keep and bear arms.”[88] Further, the history of purchasing components to assemble firearms at home draws a clear analogy to the methods employed by those who construct guns using unfinished receivers today. For these reasons, the ability to manufacture guns at home using firearm components or “precursor parts” such as unfinished receivers is within the scope of the Second Amendment.

Once a regulation has been determined to burden activity protected by the Second Amendment, the two-part test next looks to the applicable level of scrutiny to be applied.[89] As discussed above, strict scrutiny is to be applied whenever the regulation burdens the “core” of the Second Amendment.[90] Under Heller, the activities found at the core of the amendment should be viewed as those commonly performed by “law-abiding citizens for lawful purposes today.”[91] If it is, a court should apply strict scrutiny. Otherwise, a court might use intermediate scrutiny.

While it is impossible to quantifiably estimate just how prolific the practice is—because most home gun-makers do not report their privately manufactured and held firearms—the data that exists suggests that it is widespread even to this day.[92] The ATF has released that during 2019, law enforcement recovered approximately 10,000 privately manufactured firearms.[93] The agency further estimates that it recovered a total of approximately 350,000 firearms in the same year, meaning that roughly three-percent were privately manufactured.[94] While this statistic is by no means overwhelming, it provides an insight into the prevalence of privately manufactured firearms. If the statistic for the American firearm population generally is similar to that of those the ATF recovered, then of the estimated 393 million privately owned firearms in the United States, around twelve million are home-built. Even if this number is quite inaccurate—as it likely is—the fact that an entire industry has been built on supplying components to home gun-makers reinforces its scale.[95] While Heller neglected to describe how common was “common,” advocates for regulation of privately manufactured firearms appear to concede that they are widespread.[96] In fact, it is the prevalence of these firearms that concerns them, so it would be difficult for them to argue that home-built firearms are not, to some extent, “in common use.”

Supreme Court caselaw suggests that it is common use today that is determinative.[97] Still, the historical proliferation of privately manufactured firearms illustrates how their use is firmly cemented in the American tradition, surviving the industrial revolution and remaining common to this day. It can be seen from history that home gun-making using components or precursor parts was considered a common activity at the time of the founding.[98] In the American colonies alone, an estimated 3,000 individual gunsmiths were manufacturing firearms.[99] It is unknown how many additional private individuals crafted weapons solely for themselves. What the history teaches us definitively, however, is that during the Revolutionary War, individual craftsmen (both traditional gunsmiths and those of other trades and professions) built most of the weapons used.[100] The Heller court gave great weight to the Second Amendment’s protection of “arms in common use at the time.”[101] At the founding, there was no firearm in more common use than that built at home.[102] Even though mass-produced firearms have increased in popularity since then, privately manufactured firearms have maintained their commonness throughout the centuries.[103]

Because building firearms at home is a common activity, and subsequently, privately manufactured firearms are commonly used, their regulation would properly be subject to strict scrutiny. Under this standard, the Government must prove that its law “furthers a compelling interest and is narrowly tailored to achieve that interest.”[104] While it is possible that states have a compelling interest in regulating unfinished receivers, many of their laws are not narrowly tailored such that they would survive strict scrutiny.

States assert a variety of interests in their regulation of unfinished receivers. Some are procedural, such as enforcing background check laws by not letting felons obtain a firearm by building it.[105] Others are general appeals to safety from spiking gun violence.[106] States have an inherent interest in enforcing their own laws,[107] and state and federal courts have long viewed public safety as a compelling state interest.[108] So, the state interest requirement may be satisfied.

However, many of the state laws are not narrowly tailored to this interest. Nevada’s law, for example, criminalizes the sale of unfinished receivers as well as their use in assembling a completed firearm.[109] This is drastically overinclusive if the goal is to prevent felons from obtaining firearms or preventing the use of privately made firearms in crime. A less restrictive, yet policy satisfying alternative, is to bar the sale of unfinished receivers to felons, and apply to their sale the same background check requirements as completed firearms.[110] Further, the language of the act, which applies to “unfinished frame[s] or receiver[s],” is so broad that it could conceivably be applied to a broad range of fabrications, if one could conceivably intend to turn it into a frame or receiver.[111] This could plausibly apply to any piece of material that could be further machined into a firearm receiver.[112] Because there are less restrictive alternatives to this broad ban that would be at least as effective in achieving the state’s interest, Nevada’s law would fail strict scrutiny analysis.[113]

Other states with similarly restrictive statutes would face the same result. Like Nevada, New York’s law is strikingly broad.[114] At its extreme, it makes it illegal to sell an unfinished receiver to anyone other than a licensed gunsmith,[115] making unfinished receivers—typically little more than a solid block of aluminum[116]—more heavily restricted than complete firearms.[117] The District of Columbia similarly prohibits possession of unfinished receivers.[118] These regulations represent a class of state laws that are almost certainly unconstitutional.

Some other states have enacted less exacting legislation that may straddle the line of constitutionality. California, for example, primarily requires that privately manufactured firearms be registered with the state and receive a serial number.[119] This might be narrowly tailored to the state’s interest, since it meets the policy objective without removing a citizen’s ability to assemble the firearm in the first place. However, the California law also bans sales of privately manufactured firearms,[120] which seems to place it on grounds closer to Nevada’s. Connecticut, along with requiring the affixing of a serial number, makes the standards for possessing an unfinished receiver the same as that for owning a firearm.[121] This standard seems to be tailored quite closely to the state interest in enforcing its own firearm possession laws.

Thus, while some state laws may survive constitutional review, those that extend to total bans on the possession of unfinished receivers could not. The ability to build a firearm at home is firmly within the scope of the Second Amendment, and its prolific tradition puts it at the core of the amendment’s protection. To remove the ability to possess key firearm components or to assemble a firearm at home would be in direct contradiction with the fundamental right within the Second Amendment.[122]


When it comes to state regulations on unfinished receivers, the breadth of the restrictions varies. However, when the state law amounts to a ban on the possession of firearm components, it is almost certainly unconstitutional under the original meaning of the Second Amendment. Because the practice of assembling firearms at home stretches back to the founding, when almost all firearms were privately manufactured, the drafters of the amendment would have understood that the right of the people to bear arms would require a right for them to first construct them.

On the other hand, states do have a compelling interest in enforcing their own laws and protecting the public safety. Thus, for states seeking to regulate unfinished receivers in the future, great care must be made to tailor their laws to these interests. Otherwise, they risk unduly and unconstitutionally burdening their citizens’ fundamental Second Amendment rights.


[1] Harvard Law School, J.D. class of 2022; B.S., Montana State University, 2018. Special thanks to Professor Jack Goldsmith for his comments on an early draft of this paper, and to the staff of JLPP Per Curiam for all their helpful edits.

[2] Brief for the Madison Soc’y Found., Inc. as Amicus Curiae Supporting Plaintiffs-Appellants at 6, Def. Distributed v. U.S. Dep’t of State, 2016 WL 5383110 (5th Cir. 2016) (No. 15-507559).

[3] Id. at 11.

[4] Id. at 6. (citing Gary Brumfield, Rifle Barrel Making: The 18th Century Process, Flintriflesmith (Mar. 25, 2021),

[5] Id. at 7.

[6] Id.

[7] Id. (“Wallace Gusler, retired Master Gunsmith at Colonial Williamsburg, began as a sawmill worker and later turned to creating custom flintlock firearms.”).

[8] See, e.g., 80 Percent Lower Rifle Kits, [].

[9] John Biggs, What You Need To Know About The Liberator 3D-Printed Pistol, TechCrunch (May 6, 2013), [].

[10] Scott J. Beigel Unfinished Receiver Act, 2021 Sess. Law News of N.Y. Ch. 519 (West).

[11] Id.

[12] See, e.g., James B. Jacobs & Alex Haberman, 3D-Printed Firearms, Do-It-Yourself Guns, & the Second Amendment, 80 Law & Contemp. Probs. 129 (2017).

[13] Zachary Bright, State judge temporarily blocks portion of new law banning ‘ghost guns’, The Nevada Independent (July 28th, 2021, 2:00 AM), [].


[14] Howard Hall, Internal Ballistics Part 1—Cycle of Operation and Firearm Function, AEGIS (June 9, 2014), [].

[15] Id.

[16] 27 C.F.R. § 478.11 (2021).

[17] Bureau of Alcohol, Tobacco, Firearms, and Explosives, Are “80%” or “unfinished” receivers illegal?, [].

[18] 80 Percent Lower, [].

[19] Id.

[20] See, e.g., 80 Percent Lower Unfinished Receiver Jig, [].

[21] Bureau of Alcohol, Tobacco, Firearms, and Explosives, Are “80%” or “unfinished” receivers illegal?, [].

[22] 18 U.S.C. §921(s) (2018).

[23] 18 U.S.C. §923(a).

[24] 18 U.S.C. §923(i).

[25] Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (1968).

[26] 18 U.S.C. §923.

[27] Annie Karni, Ghost Guns: What They Are, and Why They Are an Issue Now, N.Y. Times (Apr. 9, 2021), [].

[28] Giffords Law Center to Prevent Gun Violence, Ghost guns—dangerous, homemade untraceable firearms—are increasingly being used to circumvent both federal and state gun laws and kill innocent people, [].

[29] Karni, supra note 26.

[30] Giffords Law Center to Prevent Gun Violence, supra note 27 (listing California, Connecticut, Hawaii, Nevada, New Jersey, New York, Rhode Island, Virginia, and Washington, and well as the District of Columbia).

[31] See, e.g., Cal. Penal Code §29180(b)(1).

[32] See Nev. Assemb. 286, 2021 Leg., 81st Sess. (Nev. 2021) (banning unfinished receivers in Nevada); Scott J. Beigel Unfinished Receiver Act, 2021 Sess. Law News of N.Y. Ch. 519 (West) (banning unfinished receivers in New York); D.C. Code Ann. §§7-2501.01, 7-2502.02, 22-4515(a) (West 2001) (banning unfinished receivers in the District of Columbia).

[33] Cal. Penal Code §29180(b)(1).

[34] Cal. Penal Code §29180(d)(1).

[35] Cal. S. 118, 2019 Leg., Reg. Sess. §§21-37 (Cal. 2020).

[36] See Nev. Assemb. 286, 2021 Leg., 81st Sess. (Nev. 2021).

[37] Id. §§3-3.5.

[38] Id. §§4-5.

[39] Id. §3.5(2).

[40] Scott J. Beigel Unfinished Receiver Act, 2021 Sess. Law News of N.Y. Ch. 519 (West).

[41] Conn. Pub. Act No. 19-6 (2019).

[42] D.C. Code Ann. §§7-2501.01, 7-2502.02, 22-4515(a) (West 2001).

[43] See Nev. Assemb. 286, 2021 Leg., 81st Sess. §§4-5 (Nev. 2021).

[44] See Cal. Penal Code §29180(d)(1).

[45] U.S. Const. amend. II.

[46] See District of Columbia v. Heller (Heller I), 554 U.S. 570, 626 (2008) (“For most of our history the [issue] did not present itself.”). Prior to Heller I, only three Supreme Court cases raised Second Amendment issues. See United States v. Miller, 307 U.S. 174, 178 (1939) (upholding the constitutionality of a federal ban on shotguns less than eighteen inches long); Presser v. Illinois, 116 U.S. 252, 253, 265 (1886) (upholding the constitutionality of a state law restricting gun ownership for those not in militia service); United States v. Cruikshank, 92 U.S. 542, 553 (1876) (finding that the Second Amendment only constrained the federal government).

[47] Heller I, 554 U.S. at 595.

[48] 561 U.S. 742, 778 (2010).

[49] Heller I, 554 U.S. at 628. One of Heller’s most controversial aspects is Scalia’s inclusion, in dicta, of presumptively constitutional limitations on the Second Amendment right. Id. at 688 (Breyer, J., dissenting) (listing “prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales”).

[50] See Eric Ruben & Joseph Blocher, From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433, 1451-52 (2018)

[51] Post-Heller Litigation Summary, Giffords Law Center (Feb. 9, 2022),

[52] United States v. Marzzarella, 614 F.3d 85, 89 (3d Cir. 2010); see also Worman v. Healey, 922 F.3d 26, 33 (1st Cir. 2019); GeorgiaCarry.Org, Inc. v. U.S. Army Corps of Eng’rs, 788 F.3d 1318, 1322 (11th Cir. 2015); N.Y. State Rifle & pistol Ass’n v. Cuomo, 804 F.3d 242, 253 (2d Cir. 2015); United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F.3d 185, 194 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1252 (D.C. Cir. 2011); Ezell v. City of Chicago, 651 F.3d 684, 702-03 (7th Cir. 2011); United Sates v. Chester, 628 F.3d 673, 680 (4th Cir. 2010); United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010). In each of these, the relevant circuit court adopted a variation of the two-part test. Only the Eighth Circuit has yet to adopt a form of the test. See Lauren Devendorf, Second-Class Citizens Under the Second Amendment: the Case for Applying Strict Scrutiny to Lifetime Firearm Bans for Individuals Previously Committed to Mental Institutions, 106 Cornell L. Rev. 501, 508 (2021). The Federal Circuit does not hear Second Amendment cases due to its specialized nature. See, e.g., 28 U.S.C. §1295 (describing the Federal Circuit’s specialized jurisdiction).

[53] See Jackson v. City & Cty of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014), cert. denied, 135 S. Ct. 2799 (2015) (noting that step one asks whether “the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical scope of the Second Amendment”).

[54] Lawrence Rosenthal, The Limits of Second Amendment Originalism and the Constitutional Case for Gun Control, 92 Wash. U. L. Rev. 1187, 1200 (2015) (“The emerging consensus in the lower courts uses original meaning only as a threshold test, which screens out some claims, but contemplates that laws—even those limiting the extent to which individuals can exercise the textually recognized right to keep and bear arms—may be sustained upon sufficient justification.”).

[55] Heller I, 554 U.S. at 628.

[56] See Silvester v. Harris, 843 F.3d 816, 823 (9th Cir. 2016).

[57] See Tyler v. Hillsdale Cty.Sheriff’s Dep’t. (Tyler II), 837 F.3d 679, 690-91 (6th Cir. 2016) (en banc).

[58] U.S. Const. amend. II.

[59] See Heller I, 554 U.S. at 605-19.

[60] Id.

[61] Id. at 606 (citing 2 Tucker’s Blackstone 143).

[62] See Aldrige v. Commonwealth, 4 Va. 447, 449 (Va. Gen. Ct.) (claiming that restrictions could be placed on “free blacks’” right to bear arms, without claiming that they were prevented from doing so in militia service); United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (“The constitution of the United States also grants to the citizen the right to keep and bear arms.” (emphasis added)).

[63] See, e.g., United States v. Torres, 911 F.3d 1253, 1258 (9th Cir. 2019) (interpreting the first step to ask whether the challenged law “regulates conduct that historically has fallen outside the scope of the Second Amendment”); Jackson, 746 F.3d at 960 (asking in step one whether the “prohibitions . . . fall outside the historical scope of the Second Amendment”).

[64] Heller I, 554 U.S. at 634 (internal quotation marks omitted).

[65] Allen Rostron, Justice Breyer’s Triumph in the Third Battle Over the Second Amendment, 80 Geo. Wash. L. Rev. 703, 706-07 (2012); see Brief for Firearms Policy Coalition, Inc. et al. as Amici Curiae Supporting Petitioners at 10, Jackson, 135 S. Ct. at 2799 (No. 14-704) (“De Facto Interest-Balancing Is Now The Prevailing Rule In The Lower Courts.”).

[66] Heller I, 554 U.S. at 628.

[67] Tyler II, 830 F.3d at 690-91.

[68] Heller I, 554 U.S. at 627 (internal quotation marks omitted); see Nicholas Griepsma, Concealed Carry Through Common Use: Extending Heller’s Constitutional Construction, 85 Geo. Wash. L. Rev. 284, 310 (2017) (describing the benefits of the “common use test”).

[69] Caetano v. Massachusetts, 577 U.S. 411, 420 (2016) (Alito, J., concurring). To suggest otherwise would undermine Heller’s protection of handgun ownership based on their popularity at the time of the case. Heller I, 554 U.S. at 629.

[70] See, e.g., id. at 411-12 (per curiam) (discussing the lower court’s error in applying the common use test). Some justices have expressed explicit support for the standard. Justice Alito, joined by Justice Thomas, said that after Heller, “the pertinent Second Amendment inquiry is whether [the arms] are possessed by law-abiding citizens for lawful purposes today.” Id. at 420 (Alito, J., concurring).

[71] See Brief for the Firearms Policy Coalition, et al., as Amicus Curiae in Support of Plaintiffs-Appellants, Rupp, et al. v. Becerra, No. 19-56004, 6-7 (9th Cir. 2020) (noting that the relevant Second Amendment inquiry is whether the arms are in common use); Jake Charles, Heller and the Vagaries of History, Second Thoughts (Sept. 16, 2019), [] (distinguishing the “common use test” from the “quintessential self-defense weapon test”); Griepsma, supra note 67, at 310 (arguing that the “common use test” offers the most consistent standard of review, and should be applied to protect concealed carry); Cody J. Jacobs, End the Popularity Contest: A Proposal for Second Amendment “Type of Weapon” Analysis, 83 Tenn. L. Rev. 231, 245-47 (2015) (describing the issues presented by Heller’s “common use” test); Jordan E. Pratt, Uncommon Firearms as Obscenity, 81 Tenn. L. Rev. 1, 4 (2014) (recounting the ambiguities of “Heller’s common use test”); Nicholas J. Johnson, The Second Amendment in the States and the Limits of the Common Use Standard, Harv. L. & Pol’y Rev. Online, (describing the limits of the “common use standard”).

[72] Heller I, 554 U.S. at 582 (“Just as the First Amendment protects modern forms of communications and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” (internal citations omitted)).

[73] Caetano, 577 U.S. at 420 (Alito, J., concurring).

[74] See Marzzarella, 614 F.3d at 89.

[75] Torres, 911 F.3d at 1258.

[76] Brief for the Madison Soc’y Found., Inc. as Amicus Curiae Supporting Plaintiffs-Appellants at 6, Def. Distributed v. U.S. Dep’t of State, 2016 WL 5383110 (5th Cir. 2016) (No. 15-507559).

[77] Remington, This is Remington Firearms, [].

[78] See Colt, The Colt Story, []; Winchester Repeating Arms, The Complete History of Winchester Repeating Arms, []; Smith & Wesson, Our Story, [].

[79] Henry J. Kauffman, Early American Gunsmiths 1650-1850, at 4-5 (1952).

[80] Id. at 10.

[81] Id. at 61.

[82] Stop Gun Violence: Ghost Guns: Testimony of Ashley Hlebinsky Before the Subcomm. on the Constitution, 117th Cong. (2021).

[83] Letter from Joseph Hewes to Samuel Johnston (Feb. 13, 1776), in 10 Colonial Records of N.C. 447 (William L. Saunders, ed., 1890).

[84] Testimony of Ashley Hlebinsky, supra note 81 at 6.

[85] Id.

[86] Id. at 5.

[87] See id. at 6.

[88] U.S. Const. amend. II.

[89] See Marzzarella, 614 F.3d at 89.

[90] Tyler II, 837 F.3d at 690.

[91] Caetano, 577 U.S. at 420 (Alito, J., concurring) (emphasis removed); see Heller I, 554 U.S. at 629 (holding that handgun ownership is protected because they “are the most popular weapon chosen by Americans for self-defense”).

[92] See Testimony of Ashley Hlebinsky, supra note 81 at 6 (“Despite the emergence of armories, mass production, and the innovation of prominent manufacturers, the role of the individual never went away and still exists today.”).

[93] Zusha Elinson, Ghost-Gun Company Raided by Federal Agents, Wall St. J. (Dec. 11, 2020 at 7:40 am ET). It is worth noting that not all of these are recovered because of their use in a crime, but could be uncovered because of red flag laws or through searches on other grounds.

[94] Firearms Trace Data – 2019, Bureau of Alcohol, Tobacco, Firearms, and Explosives,

[95] See 80% Lowers,; 80% Arms,; Grid Defense,; 5D Tactical,; Palmetto State Defense,

[96] Anna M. Kaplan, New York State Legislature Passes Nation’s Toughest Restrictions on Dangerous, Untraceable Firearms Designed to Evade Background Checks, The New York State Senate (June 8, 2021), [].

(quoting NY state Senator Brad Hoylman, who referenced the large amount of ghost guns recovered by law enforcement as a reason to support NY’s legislation).

[97] Caetano, 577 U.S. at 420 (Alito, J., concurring).

[98] Testimony of Ashley Hlebinsky, supra note 81 at 6.

[99] George D. Moller, 1 American Military Shoulder Arms 107 (2011).

[100] See Brief for the Madison Soc’y Found., Inc. as Amicus Curiae Supporting Plaintiffs-Appellants at 6, Def. Distributed v. U.S. Dep’t of State, 2016 WL 5383110 (5th Cir. 2016) (No. 15-507559) (citing 1775 Va. Acts Dec. Interreg. Ch. 3, 9 Hening’s Laws of Virginia 94); see also Henry J. Kauffman, Early American Gunsmiths 1650–1850 at 4–5, 10, 14, 55 (1952) (describing advertisements by locksmiths, jewelers, and lawyers for hand-made firearms).

[101] Heller I, 554 U.S. at 624 (internal quotation marks omitted).

[102] See generally Brief for the Madison Soc’y Found., Inc. as Amicus Curiae Supporting Plaintiffs-Appellants, Def. Distributed v. U.S. Dep’t of State, 2016 WL 5383110 (5th Cir. 2016) (No. 15-507559)

[103] Testimony of Ashley Hlebinsky, supra note 81 at 1.

[104] Cf. Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (internal quotation marks omitted).

[105] Kaplan, supra note 95.

[106] Id.

[107] Potrero Hills Landfill, Inc. v. Cnty. Of Solano, 657 F.3d 876, 883 (9th Cir. 2011) (noting the state’s vital interest in carrying out its executive functions).

[108] See United States v. Salerno, 481 U.S. 739, 745, 749 (1987) (finding public safety and crime prevention compelling state interests for the purpose of strict scrutiny review); State v. Roundtree, 952 N.W.2d 765, 782 (Wis. 2021) (“Historically, laws that dispossessed the violent served the compelling state interest in public safety.”)

[109] Nev. Assemb. 286, 2021 Leg., 81st Sess. §§3-5 (Nev. 2021).

[110] See Conn. Pub. Act No. 19-6 (2019).

[111] Nev. Assemb. 286, 2021 Leg., 81st Sess. §6(9) (Nev. 2021).

[112] The most intricate and time-consuming machining of unfinished receivers occurs at home during the final steps. Previously, the unfinished receiver is barely more than an aluminum paperweight, and any other suitable block of metal could conceivably take its place. Because the state laws do not dictate how close to finished the unfinished receiver must be, the laws are incoherently overbroad.

[113] See In re Nat’l Sec. Letter v. Sessions, 863 F.3d 1110, 1125 (9th Cir. 2017). Nevada’s law found its way into courts during the summer of 2021. A federal judge rejected the argument that the law violated Nevadan’s Second Amendment rights, but then a state judge found that the law violated the Nevada Constitution’s due process clause.

[114] Scott J. Beigel Unfinished Receiver Act, 2021 Sess. Law News of N.Y. Ch. 519 (West).

[115] Id. §3(10).

[116] 80% Lower, What is an unfinished receiver Receiver, [].

[117] In New York, citizens who are not gunsmiths may possess completed firearms if they obtain a license. N.Y. Penal Law §§265.01-b, 400.00.

[118] D.C. Code Ann. §§7-2501.01, 7-2502.02, 22-4515(a) (West 2001).

[119] Cal. Penal Code §29180(b)(1).

[120] Cal. Penal Code §29180(d)(1).

[121] Conn. Pub. Act No. 19-6 (2019).

[122] The Heller court noted that that at the time of the founding, the right to have arms was fundamental. Heller I, 554 U.S. at 593-94. As discussed above, the arms bore at the founding were overwhelmingly privately manufactured, meaning that the right to bear arms, as understood at the founding, necessarily requires the right to privately manufacture.

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Regulatory Certainty: A Flight of Fancy for the Migratory Bird Treaty Act – Garrett Kral

Posted by on Mar 22, 2022 in Per Curiam

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Regulatory Certainty: A Flight of Fancy for the Migratory Bird Treaty Act

Garrett Kral*


The MBTA’s statutory provisions “have been the subject of repeated litigation and diametrically opposed opinions of the Solicitors of the Department of the Interior.”[1]



 The United States Department of the Interior’s interpretation of the Migratory Bird Treaty Act (MBTA, or the Act)[2] has varied during the Obama, Trump, and now Biden administrations.[3] Central to this variance is a dispute over statutory interpretation; specifically, the definition of “incidental take,” i.e., unintentional migratory bird mortality, which can be a strict liability crime.[4] This article provides a brief history of the MBTA and the important role it has played in migratory bird conservation.[5] However, the focus of this article is on recent MBTA policy and judicial decisions and what these decisions could mean for the regulated community.[6]

But before we begin, it is important to consider the United States’ successful conservation of migratory bird species.[7] Industry, from oil pits to wind-based turbines, is not the leading cause of domestic migratory bird mortality.[8] In fact, data from recent years show the top three causes of domestic migratory bird mortality are: (1) cats; (2) buildings; and (3) automobiles.[9] Thus as we consider the topic of migratory bird conservation, it is important to contextualize the leading causes of migratory bird mortality.

A Brief History of the MBTA

This article does not attempt to summarize the full depth and breadth of bird law,[10] detailed treatment of which can be found elsewhere.[11] What this section does provide is a quick overview of the Act’s history. In 1913, the United States Senate adopted a resolution requesting that the President “propose to the Governments of other countries the negotiation of a convention for the protection and preservation of birds.”[12] Acting on this Senate resolution, the United States and Great Britain (signing on behalf of Canada) entered into the first treaty for the protection of migratory birds in 1916.[13]

To fulfill the United States’ treaty obligations, in 1918, Congress enacted the MBTA.[14] This treaty was the first of four entered into by the United States between 1916 and 1976 for the protection of migratory birds.[15] Since 1976, the MBTA has taken a rather circuitous flight path through each branch of the federal government in this administrative law dispute.

The Current State of the Law

 The MBTA Under the Last Two Presidential Administrations

Because much of the disagreement over the MBTA’s proper scope and purpose centers around the statutory interpretation of “incidental take,” it is important to define that term upfront. In plain English, incidental take is the harming or killing of migratory birds that results from—but is not the purpose of—otherwise lawful activity. Congress defines incidental take as “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill . . . any migratory bird, [or] any part, nest, or egg of any such bird.”[16] Examples of lawful activity that can result in incidental take, and thus open oneself up to enforcement and prosecution include: (1) personal activity (e.g., an unsuspecting landowner fells a tree with a migratory bird’s nest in its branches); (2) industrial activity (e.g., operation of an oil field waste pit that a migratory bird descends into); and (3) renewable energy activity (e.g., a land-based wind turbine that a migratory bird flys into).[17]

While the MBTA’s incidental take provision has been around since the 1970’s, this article focuses on the Act’s recent history.[18] On January 10, 2017, the Department of the Interior (DOI) under the Obama administration issued a Solicitor’s opinion stating the MBTA prohibits “incidental take.”[19] A Solicitor’s opinion is a policy memorandum from DOI’s Solicitor, the Senate confirmed principle legal adviser to the Secretary of the Interior—the Cabinet Secretary leading DOI’s 70,000 employees across 2,400 locations. This Solicitor’s opinion from the Obama administration concluded “the MBTA’s broad prohibition on taking and killing migratory birds by any means and in any manner includes incidental taking and killing.”[20]

Stated differently, under Section 707 of the MBTA the killing of a migratory bird can be a strict liability crime—at least under Section 707(a)’s misdemeanor provision where no mens rea is required to be convicted of violating the Act.[21] Individuals or companies who commit a Section 707(a) violation are “deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned not more than six months, or both.”[22]

On the other hand the MBTA’s felony provision, Section 707(b)(1)-(2), states that those who “knowingly” violate the Act “shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both.”[23] Fortunately, Section 707(b)’s felony provision has a knowledge requirement, meaning that a violation of this part of the Act is not a strict liability crime.[24] Even so, there are due process concerns with Sections 707(a)-(b) of the MBTA because they allow for criminal penalties. [25]Nevertheless, DOI has recently stated that through prosecutorial discretion it may mitigate such concerns.[26]

Under the Trump administration, DOI did not agree with the prior Solicitor’s interpretation of the MBTA. As such, less than a year after taking office, the Trump administration issued its own Solicitor’s opinion that found the MBTA only criminalizes “direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human

control.”[27] The most notable example of such conduct is illegally hunting or poaching protected migratory bird species.[28] This opinion remained the legal position of the United States for the duration of the prior administration and was supported by a final rule published by the United States Fish and Wildlife Service (FWS, or the Service) on January 7, 2021.[29]

The Solicitor’s opinion for the Trump administration began with the text of the Act, citing to the ancient maxim a verbis legis non est recedendum (do not depart from the words of the law).[30] Here, the Solicitor turned to Section 703(a) of the MBTA which defines “incidental take” and  relied upon the cannon noscitur a sociis (a word is known by its associates) to find that “pursue,” “hunt,” and “capture,” unambiguously require an affirmative and purposeful action.[31] While the two remaining verbs, “kill,” and “take,” may refer to either active or passive conduct. These tools of statutory interpretation, along with other legal analysis, led that Solicitor’s opinion to conclude Section 703(a)’s definition of incidental take is limited to affirmative actions that have as their stated purpose the taking or killing of migratory birds.[32] This brings us to the current administration’s approach to interpreting the MBTA, which is “diametrically opposed” to that of the Trump administration, and which builds upon that of the Obama administration.[33]

The Current Administration’s MBTA Approach

 Policy Preferences

On October 4, 2021, the Biden administration concurrently published three important documents: (1) the MBTA final rule; (2) the Advanced Notice of Proposed Rulemaking (ANPR); and (3) Director’s Order 225.[34] The publication of the MBTA final rule withdrew the Trump administration’s MBTA final rule, while a recent district court ruling vacated the Solicitor’s opinion from the prior administration.[35] DOI, under the current administration, has not yet issued a Solicitor’s opinion discussing “incidental take,” most likely because the position of DOI’s Solicitor remained vacant for a majority of the first year of the current administration.[36] However, based on a review of the prior two administration’s actions—and with the recent confirmation of DOI’s newest Solicitor—the current administration  has almost certainly begun drafting and is looking to publish a new Solicitor’s opinion that returns to the position that incidental take is prohibited by the MBTA.[37]

The current administration’s final rule does not propose replacement language for the prior administration’s final rule.[38] Instead, it removes the prior administration’s regulatory text altogether, stating DOI will: “return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion.” The current administration’s final rule went into effect on December 3, 2021.[39]

Also, the current administration’s publication of the ANPR in the Federal Register opened a 60-day notice and comment period that expired on the final rule’s effective date: December 3, 2021.[40] Briefly, the ANPR discusses the option of a MBTA incidental take permitting program.[41] This approach is similar to that initiated by the Obama administration in 2015,[42] but disregarded by the Trump administration in 2017, when that Solicitor concluded the MBTA does not prohibit incidental take.[43] As such, under the Trump administration’s reading of the MBTA, because lawful actions resulting in the taking of migratory bird species are not subject to enforcement or prosecution, a permitting program would be superfluous.[44] However, under the current administration’s reading of the MBTA, a permitting program is perhaps necessary “to provide both meaningful bird conservation and regulatory clarity.”[45]

Also on October 4, 2021, the Service published Director’s Order 225.[46] This policy document comes from the Director of the FWS, a politically appointed position that remains vacant in the current administration; and thus, this order was almost certainly written by lower-level DOI staff.[47] To protect against the inherent overbreadth of incidental take, Director’s Order 225 allows for enforcement discretion.[48] This approach was disfavored in the prior administration which cautioned that such discretion would likely result in the application of “arbitrary and discriminatory” power.[49] Nevertheless, Director’s Order 225 states that “the Service will focus our enforcement efforts on specific types of activities that both foreseeably cause incidental take and where the proponent fails to implement known beneficial practices to avoid or minimize incidental take.”[50]

Director’s Order 225 describes “beneficial practices” broadly, to include any action implemented in an effort to avoid and minimize the incidental taking of protected migratory birds.[51] The FWS maintains a website that provides applicable best practices and conservation measures; for example, best practices for land-based wind energy facilities include following the Service’s Land-Based Wind Energy Guidelines, which industry operators may find reduces exposure to MBTA enforcement and prosecution.[52] In practice, however, it is likely too soon to tell how Director’s Order 225 will be enforced. Thus, like the sword of Damocles, Interior’s MBTA policy preferences loom over a host of otherwise lawful and productive activities.[53]

Judicial Decisions

The MBTA has been litigated over in a bevy of federal district[54] and appellate courts.[55] Indeed, there is a circuit split on the issue of incidental take.[56] Generally, the Second and Tenth Circuits have extended the MBTA to include incidental take; while the Fifth, Eighth, and Ninth Circuits have limited the MBTA to exclude incidental take.[57] As such, there is no shortage of interesting MBTA case law to discuss. However, for brevity and clarity, this article focuses on the case law considered by DOI in its final rule.[58]

It may be said, however, that just as much scrutiny should be provided to the current administration’s final rule because of the judicial decisions it fails to discuss.[59] Namely, United States v. FMC Corporation (not discussed); but also, United States v. Apollo Energies (mentioned only once).[60]

In FMC Corp., the Second Circuit extended the MBTA to include incidental take, upholding the conviction of a corporation whose operations were found to have resulted in the incidental take of migratory birds after those birds were exposed to pesticide tainted water.[61] While in Apollo Energies the Tenth Circuit also extended the MBTA to include incidental take, finding that “[a]s a matter of statutory construction, the ‘take’ provision of the Act does not contain a scienter requirement.”[62] Thus it would seem that from DOI’s perspective FMC Corp. and Apollo Energies merit detailed discussion because they provide some legal justification for the position that the MBTA prohibits incidental take.

DOI’s absence of discussion on FMC Corp. is particularly interesting.[63] Instead of discussing this case, DOI focuses its revocation of the prior administration’s final rule on Natural Resources Defense Council v. United States Department of the Interior (NRDC).[64] NRDC is a published opinion from the Southern District of New York (SDNY), but this opinion cannot be said to supersede a published opinion from the Second Circuit—which is binding on the SDNY.

Thus, it is curious indeed that the United States filed a notice of appeal in the Second Circuit on the NRDC decision before the change in administration.[65] However, after the change in administration, the United States filed a stipulation to dismiss its appeal of NRDC.[66] Perhaps because the current administration does not want to disturb the decision reached by the Second Circuit in FMC Corp., or the decision reached by the SDNY in NRDC, the latter of which vacated the Solicitor’s opinion from the prior administration, and both of which took the position that the MBTA prohibits incidental take. But if that is the current administration’s reasoning, then why not cite to FMC Corp. as the legal justification for its final rule? If the goal is regulatory certainty, why rely so heavily on a single published opinion from the SDNY while ignoring a published opinion from the Second Circuit (and mentioning a favorable decision from the Tenth Circuit only once)?

But this is what the final rule does. In the final rule, DOI states “after further review of the January 7 [Trump administration] rule and the CITGO and NRDC decisions, along with the language of the statue” DOI has determined that the Trump administration’s final rule and its Solicitor’s opinion are not in “accord[] with the text, purposes, and history of the MBTA.”[67] However, the current administration’s final rule also states:

Reference to case law in general or legislative history can be interpreted to bolster either interpretation [of the MBTA] as demonstrated by the relevant analysis in the January 7 rule versus that of the initial Solicitor’s Opinion, M‒37041 . . . . In any case, the Service certainly has discretion to revoke the January 7 rule given the legal infirmities raised by the NRDC court and the [January 7] rule’s reliance on the CITGO decision.[68]

As such, the core of the current administration’s final rule compares, contrasts, and ultimately distinguishes NRDC from the Fifth Circuit’s decision in CITGO and the prior administration’s final rule.[69] It is interesting that DOI puts so much weight into distinguishing CITGO from NRDC because these decisions rest in different circuits and at different levels of the federal judiciary. This tactic could make more sense if DOI provided deeper treatment to the current circuit split. However, to focus DOI’s legal analysis on these two judicial decisions and a couple of non-binding policy documents is a puzzling tactic for administrative policymakers in 2022.

In its final rule, the current administration states CITGO relies on “two questionable premises.”[70] First, DOI states that the Fifth Circuit read the term “kill” out of the MBTA, “render[ing] ‘kill’ superfluous to the other terms mentioned, thus violating the rule against surplusage.”[71] Second, DOI states the Fifth Circuit erred when applying noscitur a sociis because “upon closer inspection . . . the only terms that clearly and unambiguously refer to deliberate acts are ‘hunt’ and ‘pursue.’”[72] Thus, DOI states “[t]he fact that most of the prohibited terms can be read to encompass actions that are not deliberate in nature is a strong indication that Congress did not intend those terms to narrowly apply only to direct actions.”[73] Ultimately, DOI concludes “[a]fter closely examining the court’s holding [in NRDC], we are persuaded that it advances the better reading of the statute,” one prohibiting incidental take.[74]

Lastly, it is curious and perhaps not coincidental that DOI fails to provide any meaningful treatment to the other circuit court decisions which cut against its current interpretation of the MBTA. Namely, Newton (Eighth Circuit) and Seattle Audubon Society (Ninth Circuit).[75] In Newton, the Eighth Circuit stated, “we agree with the Ninth Circuit [in Seattle Audubon Society] that the ambiguous terms ‘take’ and ‘kill’ in 16 U.S.C. § 703 mean ‘physical conduct of the sort engaged in by hunters and poachers, conduct which was undoubtedly a concern at the time of the statute’s enactment in 1918.’”[76] While in Seattle Audubon Society, the Ninth Circuit found that “the[] cases do not suggest that habitat destruction, leading indirectly to bird deaths, amounts to the ‘taking’ of migratory birds within the meaning of the Migratory Bird Treaty Act. We are not free to give words a different meaning than that which Congress and the Agencies charged with implementing congressional directives have historically given them under the Migratory Bird Treaty Act.”[77] Thus, both Newton and Seattle Audubon Society (along with CITGO) find that the MBTA does not prohibit incidental take while the current administration believes that it does, and in making this argument the current administration relies nearly in whole but at least in heavy part on a single district court decision: NRDC.[78]

If the Supreme Court were to hear a case on the current circuit split over the MBTA’s “incidental take” provision, the Court would almost certainly address not only Newton and Seattle Audubon Society, but each of the decisions discussed above.[79] And while the MBTA has been to the Court once before, that flight was taken over 100 years ago.[80] Thus, the current circuit split appears ripe for the Court’s review.


Regulatory uncertainty is disfavored. Indeed, the law (and the regulated community) demand certainty. Nevertheless, regulatory uncertainty surrounding the MBTA’s implementation is likely—and perhaps expected—in the short term. Thus, with varying presidential administrations having “diametrically opposed”[81] interpretations of the MBTA, one is left wondering what the next administration will do.


* Garrett Kral is a former U.S. EPA official and political appointee for the Trump administration.

[1] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642 (Oct. 4, 2021) (to be codified at 50 C.F.R. 10).

[2] 16 U.S.C. §§ 703–712.

[3] See discussion infra Section 3.

[4] 16 U.S.C. § 707(a). There are due process concerns with Section 707 of the MBTA because misdemeanor and felony penalties exist. DOI states it can mitigate these concerns with prosecutorial discretion. See infra, Section 3(a); Martha Williams, U.S. Fish & Wildlife Serv., Dir.’s Ord. No. 225, Incidental Take of Migratory Birds (2021) [hereinafter Director’s Order 225].

[5] See discussion infra Section 2.

[6] See discussion infra Section 3(b)(i)–(ii).

[7] 50 C.F.R. § 10.13 (Listing the total number of species protected by the MBTA as 1,093. This list was last updated on April 16, 2020, when 75 migratory birds were added and 8 were removed.) (U.S. Fish & Wildlife Service, Managed Species, Migratory Bird Treaty Act Protected Species,

[8] See U.S. Fish & Wildlife Service, Threats to Migratory Birds, Migratory Bird Mortality Questions and Answers,, (Note the data set used by FWS is from 2017, but this webpage was last updated in December of 2021, after DOI published its final rule, advanced notice of proposed rulemaking, and Director’s Order 225).

[9] See id. (Note there are a range of numbers experts use, and the federal government adopts, when setting MBTA policy. The data suggest average annual bird mortality is 3.3 billion, and the most common causes of bird mortality are: (1) cats (2.4 billion per annum); (2) buildings (599 million per annum); and (3) vehicles (214 million per annum). All industrial activity accounts for 709 million migratory bird deaths per annum.). Id.

[10] The MBTA has historical roots, but also enjoys its place in popular culture. See, e.g., It’s Always Sunny in Philadelphia, The Gang Exploits the Mortgage Crisis (FX Network television broadcast Sept. 17, 2009) (Dennis: “I can absolutely keep a hummingbird as a pet . . . it’s no different than having a parrot or a parakeet.” Charlie: “You really can’t, and I’m not saying I agree with it. It’s just that bird law in this country is not governed by reason.” Dennis: “There’s no such thing as ‘bird law.”’ Charlie: “Yes, there is.”).

[11] See, e.g., Robert Percival & Garrett Kral, Global Trends in Protection of Migratory Birds, 33 A.B.A. Nat. Res. & Env’t Mag. 16 (2018) (exploring global trends in the protection of migratory birds); Brittany E. Barbee, To Kill a Migratory Bird: How Incidental Takes by Commercial Industry Activity Should be Regulated by a New Civil Penalty Regime, Not the Current MBTA, 25 Buff. Env’t. L. J. 91 (2018) (proposing the replacement of MBTA’s criminal liability); Jessica Scott & Andrea Folds, From Friend to Foe: The Complex and Evolving Relationship of the Federal Government and the Migratory Birds it is Bound to Protect, 49 Env’t. L. 187 (2019) (advocating for the prosecution of incidental take).

[12] Senate Journal, 63rd Cong. 1st Sess. 108 (Apr. 7, 1913).

[13] Convention Between the United States and Great Britain for the Protection of Migratory Birds, U.K.-U.S., Aug. 16, 1916, 39 Stat. 1702 (ratified Dec. 7, 1916).

[14] U.S. Fish & Wildlife Service, Laws & Legislation, Migratory Bird Treaty Act,

[15] See generally, Convention Between the United States and Great Britain for the Protection of Migratory Birds, U.K.-U.S., Aug. 16, 1916, 39 Stat. 1702 (ratified Dec. 7, 1916); Convention Between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, Mex.-U.S., Feb. 7, 1936, 50 Stat. 1311 (ratified Mar. 15, 1937); Convention Between the Governments of the United States of America and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, Japan-U.S., Mar. 4, 1972, 25 U.S.T. 3329 (ratified Sep. 19, 1974); and Convention Between the United States of America and the Union of the Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, U.S.-U.S.S.R., Nov. 19, 1976, 29 U.S.T. 4647 (ratified Oct. 13, 1978). (Note that there have been amendments to at least some of these treaties; for example, the United States and Mexico treaty was amended in 1976, and the United States and Canada treaty was amended in 1995.). U.S. Fish & Wildlife Service, Laws & Legislation, Migratory Bird Treaty Act,

[16] 16 U.S.C. § 703(a).

[17] See U.S. Fish & Wildlife Service, Threats to Migratory Birds, Migratory Bird Mortality Questions and Answers,; see also United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 18 (Dec. 22, 2017).

[18] Compare Nat. Res. Def. Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469, 473 (S.D.N.Y. 2020) (stating “[f]rom the early 1970s until 2017, Interior interpreted the MBTA to prohibit incidental takes and kills.”); with, Press Release, U.S. Fish and Wildlife Service, U.S. Fish and Wildlife Service Solicits Public Input on Proposed Rule and Environmental Impact Statement for Migratory Bird Treaty Act (Jan. 30, 2021) (concluding “[w]ith five federal circuit courts of appeals divided on this question, it is important to bring regulatory certainty to the public by clarifying that the criminal scope of the MBTA only reaches to conduct intentionally injuring birds”) (on file with author).

[19] United States Dep’t Of The Interior, Solicitor’s Opinion M-37041, Incidental Take Prohibited Under the Migratory Bird Treaty Act (Jan. 10, 2017).

[20] Id.

[21] 16 U.S.C. § 707(a) (“[A]ny person, association, partnership, or corporation who shall violate any provisions of said conventions or of this subchapter, or who shall violate or fail to comply with any regulation made pursuant to this subchapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not more than $15,000 or be imprisoned not more than six months, or both.”).

[22] 16 U.S.C. §707(a).

[23] 16 U.S.C. §§ 707(b)(1)-(2).

[24] 16 U.S.C. § 707(b)(2) (“Whoever, in violation of this subchapter, shall knowingly . . . sell, offer for sale, barter or offer to barter any migratory bird shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two years, or both.”).

[25] See Director’s Order 225, supra note 4, at 2.

[26] See Id.

[27] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 41 (Dec. 22, 2017).

[28] Id.

[29] See 50 C.F.R. § 10.14 (2021).

[30] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 18–19 (Dec. 22, 2017).

[31] Id. at 19.

[32] Id.

[33] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642, 54,642 (Dec. 3, 2021) (to be codified at 50 C.F.R. pt. 10).

[34] Id.; see also Director’s Order 225, supra note 4, at 1.

[35] Regulations Governing Take of Migratory Birds, 86 Fed. Reg. at 54,642; see also Nat. Res. Def. Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469, 469 (S.D.N.Y. 2020).

[36] U.S. Department of the Interior, Office of the Solicitor, Organization Structure,

[37] The current administration issued a brief memorandum in which the then-Principal Deputy Solicitor, who has since been confirmed as DOI’s current Solicitor, revoked and withdrew the Trump administration’s Solicitor opinion, which was also vacated by a recent decision in the Southern District of New York. U.S. Dep’t. of the Interior, Memorandum 37065, (March 8, 2021).

[38] Regulations Governing Take of Migratory Birds, 86 Fed. Reg. at 54,642.

[39] Id.

[40] Migratory Bird Permits: Authorizing the Incidental Take of Migratory Birds, 86 Fed. Reg.  54,667 (October 4, 2021) (to be codified at 50 C.F.R. pt. 21).

[41] Migratory Bird Permits, 86 Fed. Reg. at 54,669.

[42] Migratory Bird Permits; Programmatic Environmental Impact Statement, 80 Fed. Reg. 30,032, 30,034 (May 26, 2015) (to be codified at 50 C.F.R. pt. 21).

[43] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 18 (Dec. 22, 2017).

[44] Id. at 37 (While the MBTA contemplates the issuance of permits authorizing wildlife take, it requires any such permit to be issued by “regulation.”) (citing 16 U.S.C. § 703(a) (“Unless and except as permitted by regulations made as hereinafter provided . . . .” (emphasis added))).

[45] Migratory Bird Permits, 86 Fed. Reg. at 54,669.

[46] Id. (“Concurrent with this final rule, we have also published an advance notice of proposed rulemaking requesting public input on potential alternatives for authorizing incidental take of migratory birds and a Director’s Order clarifying our current enforcement position.”).

[47] See U.S. Fish & Wildlife Serv., National Org. Chart, Office of External Affairs,; see also Press Release, Center for Biological Diversity, Biden Urged to Nominate U.S. Fish and Wildlife Service Director, (Sept. 8, 2021) (on file with author); PN1295, Nomination of Martha Williams for Department of the Interior, 117th Congress (2021-2022), PN1295, 117th Cong. (2022), (Martha Williams, the current Principle Deputy Director of FWS has been nominated by the Biden administration to lead FWS as its Director; and while Ms. Williams was voted out of the Senate Committee on Environment and Public Works, she has yet to receive a floor vote and thus her confirmation is pending.

[48] Director’s Order 225, supra note 4, at 2 (The Service “recognizes that a wide range of activities may result in incidental take of migratory birds” and “[p]ursuing enforcement for all these activities would not be an effective or judicious use of our law enforcement resources.”).

[49] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 41 (Dec. 22, 2017).

[50] Director’s Order 225, supra note 4, at 2 (emphasis in original).

[51] Id. at 1 (“Beneficial practice means an action implemented in an effort to avoid and minimize the incidental take of migratory birds. We also refer to beneficial practices as best management practices, conservation measures, best practices, mitigation measures, etc.”).

[52] U.S. Fish and Wildlife Serv., Management, Project Assessment Tools & Guidance,

[53] United States Dep’t Of The Interior, Solicitor’s Opinion M-37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take 1 (Dec. 22, 2017) (citing Arnett v. Kennedy, 416 U.S 134, 231 (1974) (Marshall, J., dissenting) (“The value of a sword of Damocles is that it hangs—not that it drops.”).

[54]  See, e.g., United States v. Corbin Farm Serv., 444 F. Supp. 510, 529 (E.D. Cal. 1978), aff’d, 578 F.2d 259 (9th Cir. 1978); Ctr. For Biological Diversity v. Pirie, 191 F. Supp. 2d 161 (D.D.C. 2002) vacated on other grounds sub nom.; Ctr. For Biological Diversity v. England, 2003 U.S. App. Lexis 1110 (D.C. Cir. Jan. 23, 2003); Nat’l Audubon Soc’y v. U.S. Fish & Wildlife Serv., 1:21-cv-00448 (S.D.N.Y. filed Jan. 19, 2021).

[55] See, e.g., United States v. FMC Corp., 572 F.2d 902, 903 (2nd Cir. 1978); United States v. Apollo Energies, Inc., 611 F.3d 679, 680 (10th Cir. 2010); United States v. CITGO Petro. Corp., 801 F.3d 477, 478 (5th Cir. 2015); Newton County Wildlife Ass’n. v. U.S. Forest Serv., 113 F.3d 110, 111 (8th Cir. 1997); Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 298 (9th Cir. 1991).

[56] See supra note 19, Press Release, U.S. Fish and Wildlife Service, U.S. Fish and Wildlife Service Solicits Public Input on Proposed Rule and Environmental Impact Statement for Migratory Bird Treaty Act (Jan. 30, 2021) (on file with author); Corinne Snow & Patrick Traylor, et. al., Biden Administration Looks To Recriminalize Accidental Bird Deaths In Traditional And Renewable Energy Sectors, JD Supra (March 18, 2021) (finding that “[t]here is no one-size-fits-all answer on MBTA risk exposure, at least until the Supreme Court resolves the circuit split over the proper reach of the MBTA.”),

[57] Compare FMC Corp. 572 F.2d at 903, and Apollo Energies, Inc., 611 F.3d at 680, with CITGO Petro. Corp., 801 F.3d at 478, Newton County Wildlife Ass’n, 113 F.3d at 111, and Seattle Audubon Soc’y, 952 F.2d at 298 .

[58] 86 Fed. Reg. 50,644 (comparing Nat. Res. Def. Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469 (S.D.N.Y. 2020), with CITGO, 801 F.3d at 478 and 50 C.F.R. § 10.14 (2021)).

[59] See, e.g., FMC Corp., 572 F.2d at 903; Newton, 113 F.3d at 111; Seattle Audubon Soc’y, 952 F.2d at 298.

[60] See generally Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642 (Dec. 3, 2021) (to be codified at 50 C.F.R. pt. 10).

[61] FMC Corp., 572 F.2d at 903.

[62] Apollo Energies, 611 F.3d at 686.

[63] Maxine Joselow, Biden Officials Finalize a Rule Making it Harder to Kill Migratory Birds, Wash. Post, Sept. 20, 2021, available at (quoting Kathleen Sgamma, the President of the Western Energy Alliance which represents oil and gas drillers in Western states, arguing that “[b]y ignoring all but one circuit court ruling in this rule and hanging its hat on a district court ruling that hasn’t gone through appeal, the Biden administration is not clearing up the legal issues addressed by various circuit courts and will be legally vulnerable.”).

[64] 478 F. Supp. 3d 469 (S.D.N.Y. 2020).

[65] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642, 54,643 (Oct. 4, 2021) (to be codified at 50 C.F.R. pt. 10).

[66] Id.

[67] Id. at 54,644.

[68] Id. (emphasis added).

[69] See NRDC, 478 F. Supp. 3d at 469; United States v. CITGO Petro. Corp., 801 F.3d 477 (5th Cir. 2015). (Note that FWS also points to the Stump Act, which among other things carved out an incidental take exemption for military activities that result in the death of protected migratory birds. FWS argues the inclusion of this exemption in the Stump Act demonstrates that Congress intended the MBTA to prohibit incidental take. FWS also cites to concerns raised by the Canadian government that the prior administration’s final rule did not comply with the spirit of the treaty that the United States entered into with Canada in 1916.).

[70] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642, 54,643 (Oct. 4, 2021) (to be codified at 50 C.F.R. pt. 10).

[71] Id. (citing Corley v. United States, 556 U.S. 303, 314 (2009)).

[72] Id.

[73] Id.

[74] Id.

[75] Newton County Wildlife Assn., 113 F.3d at 110; Seattle Audubon Soc’y, 952 F.2d at 297.

[76] Newton, 113 F.3d at 111 (citing Seattle Audubon Soc’y, 952 F.2d at 302).

[77] Seattle Audubon Soc’y, 952 F.2d at 303.

[78] Regulations Governing Take of Migratory Birds; Revocation of Provisions, 86 Fed. Reg. 54,642, 54,643 (Oct. 4, 2021) (to be codified at 50 C.F.R. pt. 10).

[79] See supra note 55.

[80] See Missouri v. Holland, 252 U.S. 416 (1920) (finding that the MBTA was constitutional under the treaty power.).

[81] 86 Fed. Reg. 54,642.

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Corporate Bankruptcy Gets A Shakedown From Mass Tort Trial Lawyers – Lawrence A. Friedman

Posted by on Mar 7, 2022 in Per Curiam

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Corporate Bankruptcy Gets A Shakedown From Mass Tort Trial Lawyers

Lawrence A. Friedman[1]


The U.S. corporate reorganization process is, at its core, about restructuring in a manner that maximizes corporate value and then redistributes that value efficiently to creditors of all types (employees, bondholders, etc.), thus staving off liquidation.  The corporate bankruptcy system does this reasonably well.  Insurance companies, the debtor, creditors and sometimes principals of the debtor come together to chart a course forward and keep the company as a going concern.  But a new threat has emerged—mass tort trial lawyers swing into the middle of this exercise and, with some tricks, walk away with cash that might otherwise go to employees, vendors, and other creditors.  The scheme relies on a flurry of marketing to create a massive pile of potential tort liability—none of which is able to be fully verified, challenged, or adjudicated within the confines of bankruptcy proceedings—and is designed to threaten every other stakeholder and net the lawyers a big payday.  This sketchy shakedown playbook imposes huge costs and takes massive value away from other creditors who get crushed in the trial lawyer gold rush.  The best response, short of a major legislative change, would be (1) action through the Judicial Conference to require added up-front disclosure and heightened certification requirements for the lawyers (and others, as the case may be) who help file claims on behalf of tort claimants, and (2) increased judicial oversight through more frequent appointment of claims examiners to review the process by which claims were solicited, evaluated, and submitted, and in doing so help tamp down on abuses.

Bankruptcy in America

The framers recognized that bankruptcy is a natural part of commerce and thus a federal government with the power to regulate commerce would naturally have the power to establish uniform bankruptcy laws.  The power for Congress to establish uniform bankruptcy laws is found in Article 1, Section 8, Clause 4 of the Constitution.  And James Madison, in Federalist 42, explained that “The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question.”

The overall goals of the system haven’t changed much since the Founding, although the design has evolved from the early 1800’s to the modern framework that is embodied in the Bankruptcy Code of 1978.  While early bankruptcy laws, reflecting society at the time, were creditor-centric, the laws in more recent times have more delicately balanced the rights of creditors with those of debtors.  In the consumer context, creditors’ rights are balanced against the debtor’s right to a fresh start through Chapter 7 or 13.  In the corporate context, the creditors’ rights are balanced against the corporation’s ability to restructure and thus avoid liquidation via Chapter 11 and newly minted Chapter 5, which streamlines the reorganization process for small businesses.

Consumer Bankruptcy Fraud and Systemic Reforms

While the bankruptcy system is known for functioning well, there have been historic episodes where the system ran into trouble or abuse and fraud were too prevalent.  For example, twenty-some years ago, there used to be a serious fraud and abuse problem with consumer bankruptcies. Between 1989 and 2001, credit card debt almost tripled, from $238 billion to $692 billion, and the savings rate steadily declined.[2]  The bankruptcy rate jumped 125%.  And this happened during an unprecedented time of prosperity in the United States.  During this period, it was not uncommon for a debtor to have $50,000, $75,000, or even $100,000 of credit-card debt while claiming household goods and furnishings of less than $1,500.  As a Chapter 7 trustee administering these cases, trying to figure out where all this borrowed money had gone, I began randomly exercising my statutory authority under 11 U.S.C. § 704 to take inventory of debtors’ assets and compare them to their bankruptcy schedules.  It turned out all too often that the assets I was inventorying in this process were grossly understated.  Further investigation revealed that it was often attorneys for the debtors who understated the debtors’ assets, playing on the fact that there was really no one auditing or policing the system at that time.

I documented a large portion of this work, and eventually testified several times before the United States Senate regarding my findings, giving evidence of the actual fraud that I had found.  I then became the Director of the Executive Office for United States Trustees in 2002.  We restructured the Office, creating both civil and criminal enforcement divisions to address the fraud that was documented in the consumer segment of the bankruptcy process.  We also created a Significant Accomplishments Reporting System and published annual reports regarding the office’s activities during each fiscal year.  This structural change to the Office had a profound effect on the fraud problem.  During Fiscal Year 2003, the program’s enforcement efforts prevented the discharge of approximately $600 million in unsecured debt.  The program also obtained hundreds of injunctions against bankruptcy petition preparers who had violated the bankruptcy code.  And we refocused the efforts of Chapter 7 Trustees, who ended up closing more than 40,000 cases and distributing more than $1.5 billion in funds to creditors.

Congress then passed the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005.  The Act, which is still in effect, contained provisions that created a means test to ensure that debtors were placed in the proper Chapter of the Code.  Pursuant to the Act, attorneys are now required to certify that they have made a reasonable inquiry into the information they place in the schedules of debtors. And there are limitations on who can prepare petitions for debtors, with limits on fees for non-attorney petition preparers.

The structural reforms we made leveled the playing field for both debtors and creditors while ensuring that everyone played by the rules.  I left my role as the head of the United States Trustee Program in 2005 knowing that the consumer segment of the bankruptcy system was more transparent and thus more trustworthy.

Mass Tort Claims as a Threat to Corporate Bankruptcy Reorganization

The newest fraud problem, and impending peril, comes on the corporate side of the bankruptcy system and involves mass tort trial lawyers bringing their playbook into the bankruptcy courts.  The scheme is simple: mass tort trial lawyers set out to generate a crushing number of previously unknown and unaccounted-for claims against the company that is in bankruptcy.

The mass tort trial lawyers engage a full-scale sales operation to further their goal, employing sophisticated “lead generation” teams that find new potential claimants and “lead conversion” specialists that turn the leads into claims with maximum value.  The “lead generation” companies invest in all advertising channels, from social media advertising, to online search and mobile maps, to television and radio.  These are the types of firms that market “mass tort cases ready to litigate” and offer “zero risk” client acquisition arrangements to help law firms “convert more leads,” retain more clients, enhance those clients’ claims for maximum potential value, and otherwise provide a conveyer belt of clients and claims.

The plan is to bring a deal-crushing stack of potential claims to the bargaining table.  If a case has $8 billion in assets and $10 billion in traditional liabilities, the lawyers might look to bring billions more in unexpected tort claims, none of which are able to be fully verified, challenged, or adjudicated within the confines of bankruptcy proceedings that are designed for other purposes.  This throws a wrench into the traditional restructuring.  It shifts the balance of power in the final deal negotiations by creating a new, burgeoning class of unsecured creditors with claims in the bankruptcy that the debtor and every other creditor have to deal with but which are hard to value with precision within the usual course of bankruptcy proceedings.  The scale of the operation and the new class of unsecured creditors forces insurance companies, the debtor, creditors, and sometimes principals of the debtor back to the drawing board, with the mass tort trial lawyers holding a substantial amount of power.

But fear not, the trial lawyers typically offer an easy solution: create a separate fund of cash to be held in trust as the sole source for resolution of the mass tort claims (including mountains of fees for the lawyers).  The details can get complicated depending on insurance arrangements and the like.  But a typical arrangement entails the debtor offering up a substantial sum certain that is nonetheless a material discount to the total nominal value of the new, burgeoning, hard-to-value class of unsecured mass tort claims.  In exchange for getting guaranteed access to this money, the mass tort trial lawyers agree, as a provision in the bankruptcy plan, to look only to this sum certain amount for satisfaction of their clients’ claims (and the concomitant fee commitments to the lawyers) and to provide the debtor, again as part of the bankruptcy plan, with a bar on additional claims and release for all pertinent future tort claims known and unknown.  The creation of this fund (and payday) for the lawyers dislodges the wrench thrown by the trial lawyers, essentially clears the mass tort trial lawyers and the class of unsecured creditors from the playing field, and allows the restructuring to proceed in the traditional fashion with the existing players.

In a lot of ways, the trial lawyer sketchy shakedown playbook in these cases feels a bit like a case of greenmail, the Wall Street tactic that was popular in the 1980s, where a corporate raider buys up shares in a company, threatens a hostile takeover, and then agrees to walk away, sell the shares, and drop the takeover threat when management agrees to purchase the raider’s shares at a special, premium price.  Like with greenmail, the mass tort trial lawyers initiate aggressive maneuvers that threaten existing participants and then accept a targeted payday in exchange for ceasing the aggressive maneuvers and letting the existing participants continue as before.  More specifically, the mass tort trial lawyers use their marketing operations to introduce a threat to every other stakeholder in the process who had predictable expectations of how the bankruptcy would proceed—the “nice bankruptcy process you have here, would be terrible for something to happen to it” moment—and the lawyers then accept a guaranteed pay day from existing creditors who have strong incentive to go along with an offer that can buy peace at a discount to the new stack of unsecured claims with the value-add of the mass tort lawyers giving what amounts to a sweeping injunction against future claims and any future effort to try the same maneuver.[3]  Put simply, the mass tort trial lawyers obtain a pay day in exchange for (1) undoing a threat to existing stakeholders that the lawyers themselves helped generate and (2) providing an effective bar on any similar threat coming forward in the future.

Tragic Vignette: The Boy Scouts of America Bankruptcy

While resolution of mass tort claims within the bankruptcy process has its roots in asbestos litigation, silicone breast implants, and (more recently) the Purdue Pharma opioids bankruptcy, the current Boy Scouts of America Bankruptcy in Delaware is a searing vignette of how these issues play out in a dramatic case with compelling victims and vast sums of money at stake.[4]

At the center of the Boy Scouts bankruptcy are sexual abuse claims.  Abuse allegations had dogged the Boy Scouts of America for years, with allegations and litigation growing after a landmark case in 2010 that resulted in $19.9 million in damages and a court-ordered release in 2012 of internal files on reports of abuse by Boy Scouts of America volunteers.[5]  The bankruptcy in 2020 was explicitly designed to reach a resolution of the ongoing abuse claims and compensate victims.[6]

At the time of the initial bankruptcy filings, the number of actual lawsuits filed by abuse claimants was less than 300, with the number expected to grow to about 2,000.[7]  The mass tort trial lawyers then walked in and flipped the proceedings upside down with upwards of 80,000 new sexual abuse claims.[8]   More than 55,000 came from a group of 10 law firms that branded itself as the Coalition of Abused Scouts for Justice, entering the case in a concerted push that has generated tension with the official Torts Claimant Committee that the Court originally assigned to speak on behalf of victims.[9]

The scale of the number of new claims has produced a to-be-expected series of allegations from all corners of the case regarding questionable behavior and the tactics involved.  There have been repeated clashes between the Tort Claimant Committee and the Coalition of Abused Scouts for Justice.  There have been skirmishes over the content of the advertising the mass tort lawyers are deploying, with the Boy Scouts alleging that mass tort lawyers are disseminating false and misleading information about the eventual payout and the claim-filing process in order to sign up victims who might otherwise file a claim without a lawyer or prefer to remain anonymous and out of the case.[10]  And there have been allegations from certain insurance carriers that mass tort lawyers in the case cut corners in filing thousands of unvetted, potentially fraudulent claims.[11]  The judge in the case, Chief Judge Laurie Selber Silverstein, has stepped in more than once to police the tactics and maneuvering, including on the question of the misleading advertisements, where she made clear that, at least as to some of the allegations, “the statements are false and misleading and shall be removed.”[12]

With these contours, it is no surprise that the mass tort trial lawyers are now in position— consistent with their sketchy shakedown playbook—to hold up the proceedings in exchange for a massive payday, that the costs of the proceedings themselves are skyrocketing, and that there is now a real risk that all of this will dilute the money available for the original victims whose claims were the impetus for the bankruptcy filing in the first place.[13]  For example, recent reports are that the bill for the Boy Scouts’s professionals and those hired by the official creditors’ committees will be more than $205 million, which is approaching the size of the trust for survivors that has been part of ongoing settlement discussions.  Experts have noted with alarm that the bills for lawyers and others in connection with the fraught proceedings are on a path to being more than 40% of the Boy Scouts of America’s self-reported assets, whereas in past mega-bankruptcies the fees are more like 2-3%, and certainly less than 10%.[14]

Stopping the Abuses and Helping Victims

Make no mistake, there is a real problem here.  Corporate bankruptcy reorganization is about dividing the limited assets of a distressed company.  The mass tort trial lawyer gambit here nets the lawyers and their marketing teams a big payday, but it imposes huge costs and takes massive value away from other creditors, including employees, vendors, and—as in the case of the Boy Scouts bankruptcy—real victims who are getting crushed in the trial lawyer gold rush.

One systematic way to respond to the problem here is legislation from Congress.  Congress could pass legislation to try and force disclosure of how claims are generated and otherwise more aggressively regulate the full-scale sales operations that the mass tort trial lawyers use to run their gambit in these bankruptcy cases, for example.  But, even setting aside other concerns such legislation might raise, relying on Congressional action doesn’t often produce high hopes for solving real world problems in a timely fashion.  As recent events in Congress have demonstrated, the path forward for any substantive, non-mandatory legislation, particularly judicial reform legislation, is questionable.  Passing the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005 took nearly 10 years during a different time in terms of Congressional cooperation and ability to forge bipartisan consensus around reforms to courts.

Another potential avenue for structural reform in this area, short of legislative action, would be action through the Judicial Conference’s Committee on Rules of Practice and Procedure to require more up-front disclosure and heightened certification requirements for the lawyers (and others, as the case may be) who help file claims in the bankruptcy process on behalf of tort claimants.  The Rules Enabling Act, 28 U.S.C. §§ 2071-2077, authorizes the Supreme Court of the United States to prescribe general rules of practice and procedure for the federal courts, including the bankruptcy courts.  Related to this authority is the power that Bankruptcy Rule 9009 gives to the Judicial Conference to prescribe the official forms that, pursuant to the Rule, shall be used in federal bankruptcy proceedings without alteration (except as otherwise provided in the bankruptcy rules, in a particular Official Form, or in the national instructions for a particular Official Form).[15]

Changing the pertinent Bankruptcy Rules themselves to heighten oversight of the claim-generation process—for example, by requiring that third-party providers employed by mass tort trial lawyers be retained subject to an order of the bankruptcy court (like any other professional employed in furtherance of the bankruptcy), with the estate as the locus for payment and therefore greater transparency—would be a two- to three-year process (likely as a complement to updates to the Official Forms, as discussed below).[16]  The Advisory Committee on Bankruptcy would evaluate the proposal in the first instance, seek permission from the full Judicial Conference’s Committee on Rules of Practice and Procedure, better known as the Federal Rules Committee, to publish a draft of any contemplated amendment that the Advisory Committee thought worth pursuing, and then choose ultimately to transmit the amendment as contemplated to the full Federal Rules Committee (or not) based on comments from the bench, bar, and general public.  The Federal Rules Committee would then independently review the findings of the Advisory Committee and, if satisfied, recommend changes to the Judicial Conference itself, which in turn would recommend the changes to the Supreme Court of the United States (or not), at which point the Supreme Court would consider the proposal and ultimately be the entity to promulgate any change to the pertinent rules.

There is also a complementary path that the Federal Rules Committee could follow while full-scale rule changes were in process: changing the Official Forms for the federal bankruptcy proceedings.  This is how the Federal Rules Committee tackled some meaningful reform efforts when I was an ex officio member during my tenure as Director of the Executive Office for United States Trustees.  In the aftermath of the high-profile National Mortgage Settlement, the Federal Rules Committee revamped the official proof of claim form for mortgage debts, changing how the official form addressed deficiencies and how claims that might change based on contractual language are treated in the filing process—for example, mortgage claim holders must now give notice in the bankruptcy case in advance of any change in the amount of the monthly claim amount.[17]  Similarly, after the Supreme Court held that the Fair Debt Collection Practices Act did not apply to the filing of a proof of claim form in bankruptcy in Midland Funding, LLC v. Johnson,[18] the Federal Rules Committee revamped the official proof of claim form to require a prominently placed clear statement disclosing that the debt may be subject to legal defenses.  In both these instances, the changes to the Official Forms added additional requirements, disclosures, and detail in the initial claim-filing process to serve an information-forcing function and add transparency and trust to the system where it might have been lacking before.  This same approach could be deployed in a matter of months in response to the current mass tort problems, with real systematic benefits.

Yet another expedient and meaningful option for addressing the real concerns here would be for bankruptcy judges to increase transparency through proactive appointment of claims examiners.  Bankruptcy judges are in a position to do this right away.  They have the power to appoint claims examiners pursuant to 11 U.S.C. § 1104.  And this would not be a wholly novel approach.  The use of examiners has grown dramatically since the United States Trustee Program sought the use of them in Enron, WorldCom, and Adelphia, and the appointment of examiners for particular matters within an ongoing bankruptcy proceeding (such as examiners to shed light on fees sought by all professionals in a case) is not uncommon.  Examiners can serve many purposes, but the common theme is that they do not work to fully adjudicate questions in their topic area, but instead perform an investigative function and file detailed reports regarding the matters they were tasked with investigating.  These reports serve many beneficial purposes.  For example, they help consolidate key information, aiding with eventual discovery and other related reviews, including any involvement by other departments within agencies like the Department of Justice and the Securities and Exchange Commission.  And, perhaps most importantly, the examiner reports, which can often be multi-volume affairs, pull back the curtain to shine light on what is actually happening in the bankruptcy proceedings or what precipitated the debtor’s insolvency.

The appointment of claims examiners in cases where large numbers of tort claims are brought into the bankruptcy proceedings would shed light on who is submitting the unsecured mass tort claims, how the claims were solicited, sourced, and evaluated prior to submission (if at all), what representations have been made to claimants, and whether victims are being subjected to abuse or mistreatment in connection with the sourcing and submission process.  This would help reveal questionable behavior and help courts take corrective action in response.  A claims examiner is the best way to decipher how a few hundred actual and expected claims suddenly balloons to become over 80,000 claims, what fees are reasonable in such scenarios, and whether judicial intervention is needed to protect victims from their own lawyers.  In addition to serving a responsive function in these cases, the increased transparency that systematic use of claims examiners would drive is exactly what is needed to help tamp down and dissuade future abuses.

*                 *                 *

The problems creeping into corporate bankruptcy because of mass tort trial lawyers are serious.  The damage to victims and other creditors is real.  As the Boy Scouts of America bankruptcy is illustrating in stark fashion, real victims are getting crushed in a mass tort trial lawyer gold rush that imposes huge costs and takes massive value out of a system that is meant to divide the limited assets of a distressed company.  We can and should respond.  Courts, judges, and other public officials should take action now to increase transparency, expose the forces behind the problems, and respond in an appropriate fashion in order to protect the system and victims.



[1] Lawrence A. Friedman is the Managing Member of Friedman Partners LLC.  He was the Director of the Executive Office for U.S. Trustees from 2002-2005 and prior to that served as a Chapter 7 bankruptcy trustee administering more than 10,000 bankruptcy cases.

[2] Tamara Draut & Javier Silva, Borrowing to Make Ends Meet, Demos (Sept. 2003), [].

[3] The bar on future claims combined with the releases for all future claims known and unknown that are the norm in this type of arrangement are not without controversy.  There are also constitutional questions, as demonstrated by the current litigation in the United States Court of Appeals for the Second Circuit related to Purdue Pharma and the Sackler Family getting releases from claimants who do not yet even know they have a claim.  See In Re: PURDUE PHARMA, L.P., No. 22-85 (2d Cir. 2022).

[4] In re: Boy Scouts of America and Delaware BSA LLC, No. 20-bk-10343 (U.S. Bankruptcy Court for the District Court of Delaware).

[5] See, e.g., Becky Yerak & Soma Biswas, Boy Scouts Draw Plan to Settle With Sex-Abuse Victims, Exit Bankruptcy. Here’s What We Know, The Wall Street Journal (Sept. 15, 2021), []; Cara Kelly, Nathan Bomey, & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy In The Face Of Thousands Of Child Abuse Allegations, USA Today (Feb. 18, 2020), [].

[6] See, e.g., Randall Chase, EXPLAINER: What’s At Stake In Boys Scouts Bankruptcy Case, Associated Press (Aug. 11, 2021).

[7] Cara Kelly, Nathan Bomey, & Lindsay Schnell, Boy Scouts Files Chapter 11 Bankruptcy In The Face Of Thousands Of Child Abuse Allegations, USA Today (Feb. 18, 2020), [].

[8] Cara Kelly, Boy Scouts of America Bankruptcy Update: Key Agreement Reached Ahead Of Confirmation Hearing, USA Today (Dec. 15, 2021), [].

[9] Rachel Axon, Nearly 90,000 File Sexual Abuse Claims Against The Boy Scouts in Unprecedented Case, USA Today (Nov. 16, 2020), []; Rachel Axon & Cara Kelly, Boy Scouts Abuse Claims May Become Largest Case Against A Single National Organization, USA Today (Oct. 23, 2020), [].

[10] See, e.g., Elise Hansen, Boy Scouts Seek To Curtail ‘Misleading’ Abuse Claim Notices, Law360 (Aug. 25, 2020), []; Eric T. Chaffin, Amid Increasing Lawsuits, Boy Scouts Complain About Legal Ads, New York Legal Examiner(Oct. 1, 2020), []; Andrew Karpan, Firms Told To Stop Running ‘Misleading’ Ads In Scouts’ Ch. 11, Law360 (Sept. 17, 2020), [].

[11] Max Mitchell, Plaintiffs Firms Flooded Boy Scouts Bankruptcy With Unvetted, Potentially Fraudulent Civil Claims, Insurers Allege, (Feb. 4, 2021), [].

[12] Andrew Karpan, Firms Told To Stop Running ‘Misleading’ Ads In Scouts’ Ch. 11, Law360 (Sept. 17, 2020), [].

[13] Cara Kelly, Big winners in the Boy Scouts bankruptcy? Attorneys, who could walk away with $1 billion, USA Today (Dec. 10, 2021), [].

[14] Id.

[15] Permitted Changes to Official Bankruptcy Forms, United States Courts, [].

[16] About the Rulemaking Process, United States Courts, [].

[17] See, e.g., Bankruptcy Rule 3002.1, Notice Relating to Claims Secured by Security Interest in the Debtor’s Principal Residence, and 2011 Committee Notes on Rules.

[18] 137 S.Ct 1407 (2017).

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JLPP Publishes Issue 1 of Volume 45’s Print Edition – JLPP Staff

Posted by on Feb 25, 2022 in Per Curiam

JLPP Publishes Issue 1 of Volume 45’s Print Edition

JLPP Staff

The Harvard Journal of Law & Public Policy is proud to share Issue 1 of Volume 45’s print edition, just posted today. This Issue begins with five essays from the 2021 Federalist Society National Student Symposium, held at Penn Law School. Senator Mike Lee’s Keynote Address to the Symposium starts off the Symposium portion of the Issue, followed by essays from Dean Ron Cass and Professors Oona Hathaway, John McGinnis, and John Yoo. After the Symposium essays, the Issue includes an adapted version of Justice Samuel Alito’s remarks at the 2020 Federalist Society National Lawyers Convention, delivered virtually at the height of the COVID-19 pandemic.

On the heels of the publication of his new book Common Good Constitutionalism, Professor Adrian Vermeule has co-authored an essay in Issue 1 with Professor Conor Casey on myths about common good constitutionalism. In addition, Professors Eugene Volokh and Ryan Williams each publish articles in this Issue, with Professor Volokh writing on overbroad injunctions against speech and Professor Williams penning a piece on lower court originalism.

Finally, the Issue features three pieces of student writing—two Notes and a Case Comment. JLPP Articles Chair John Acton kicks off the student writing section with a Note about deference to the commentary of the U.S. Sentencing Guidelines. JLPP Notes Chair Brett Raffish follows with a Note about arbitrary property interference. And former JLPP Articles Chair Jason Muehlhoff finishes the Issue with a Case Comment about the Supreme Court’s decision in Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

To access the full issue, click here.

Symposium Essays




Notes and Case Comments

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Adam J. White and Kermit Roosevelt III on the Supreme Court Commission

Posted by on Feb 24, 2022 in Per Curiam

Harvard Journal of Law and Public Policy: Per Curiam is pleased to present two essays from Adam White and Kermit Roosevelt on their thoughts and role on President Biden’s Supreme Court Commission. Each essay explores the nature of the Commission and why the authors took the positions they did. While the authors came out on different sides of the issues, these pieces offer a unique glimpse into the Commission’s work and the place of the Court in our Constitutional Republic.

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The Supreme Court Fights are Really About the Senate – Adam J. White

Posted by on Feb 24, 2022 in Per Curiam

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The Supreme Court Fights are Really About the Senate

Adam J. White[1]


As its name suggests, President Biden’s Commission on the Supreme Court of the United States centered on debates surrounding the Supreme Court. But throughout my service on the commission, I was reminded time and again that political fights about the Court are, at a deeper level, constitutional fights about the Senate.

It is rather fitting to find myself writing about the Court, the Senate, and the Court Commission in the Harvard Journal of Law & Public Policy. Many years ago, as a student at Harvard Law School, I wrote a paper on the Senate and judicial nominations, which the JLPP later published.[2] In those years, Senate Democrats’ filibusters against President Bush’s judicial nominations spurred him to insist, “[t]he Senate has a Constitutional obligation to vote up or down on a President’s judicial nominees.”[3]

I liked President Bush’s judicial nominations, so I instinctively agreed with his constitutional point and set out to write a paper accordingly. But before long, my research brought me to a different conclusion: far from obligating the Senate to vote (a proposal that the constitutional convention specifically considered but rejected), the Constitution places the burden upon presidents to convince senators to vote for their judicial and executive nominations.[4] And for good reason.[5]

When Justice Scalia died unexpectedly in 2016, the ensuing events put this fundamental constitutional question—of the powers of the Senate and the President, and the future of the Court—front and center in our politics for nearly a year. The Senate, controlled by Republicans, did not act on President Obama’s nomination of Merrick Garland, waiting instead until President Trump’s post-election nomination of Neil Gorsuch.[6] And critics, in turn, accused Republicans of “stealing” a Supreme Court seat.[7]

The Court Commission’s report briefly recounts those events and some of the arguments.[8] And it also recounts another way in which the Senate’s advice and consent power is implicated by efforts to restructure the Court. The report explains how any effort to impose new term limits on Justices—for example, 18-year terms, so that a nine-Justice court would see a new vacancy every other year—would necessarily require a concomitant change to the Senate’s role in the appointment of new Justices[9], so that the Senate could no longer present a serious obstacle to the President’s appointment of new Justices.[10]

The fact that term limits would almost necessarily require a reduction in the Senate’s role is the main reason why I changed my mind on term limits, as I explained at the end of the Commission’s work in my concurring statement.[11] More broadly, my time on the Commission helped me to better understand that current political fights over the Court are, at their heart, arguments about the role of the Senate and the Presidency in our constitutional republic.

There seems to be a strongly held view, among Court-focused activists and perhaps much of the politically aware public, that Supreme Court appointments are simply a perk of the presidency. We see it when partisan activists demand that Supreme Court justices retire simply to open a new seat for the current president.[12] We saw this in the debates surrounding the 2016 vacancy, animated by the presumption that it is unfair for the Senate not to fill a vacant Supreme Court seat.[13] We also see it in the debates about Supreme Court term limits, when advocates for term limits argue that a regular schedule of vacancies and appointments is necessary to eliminate “the variation in the number of each President’s opportunities to nominate a Justice[;]” their premise is that it is inherently unfair for one President to appoint more Justices per four-year term than others.[14] As the Court Commission’s report recounted, “proponents of term limits do not seek partisan balance” on the Court, but “if a party wins the White House more often, its Presidents should have the opportunity to nominate more Justices,” and “parties that lose [presidential] elections” should not “have outsized impact on who sits on the Court and on its general direction.”[15]

We are well accustomed to warnings about the overgrowth of presidential power. We are all too familiar with the dangers of Presidents overstepping their constitutional bounds, encroaching upon the other branches. We also know that too often Congress gives power away to the executive branch, in ways that advance Congress’s modern political incentives yet undermine the constitutional order. And we see this all in both domestic and foreign affairs.[16]

The new Court-packing or term-limit arguments present the same dangers. Criticism of the Senate’s inaction on the Garland nomination; proposals to reduce the Senate’s confirmation power in order to facilitate term limits; and the presumption that fairness requires Supreme Court vacancies to be mapped on to presidential political calendars all treat the Supreme Court as little more than the echo of presidential elections. It treats presidential elections as the only elections that genuinely matter.

Today our major constitutional crisis is not a domineering Congress, but a desiccated one. We cannot afford for Congress to cede still more power to the presidency; rather, we need Congress to reassert its proper constitutional roles. And especially so for the Senate, the part of Congress that was created to be less impassioned, more statesmanlike.[17] For the sake of our constitutional system, we need to resist this latest instinct toward the imperial presidency and learn once again to respect the Senate’s crucial role in the appointments process.



[1] Former commissioner, Presidential Commission on the Supreme Court of the United States; Senior Fellow, American Enterprise Institute; Co-Executive Director, George Mason University’s C. Boyden Gray Center for the Study of the Administrative State.

[2] Adam J. White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harv. J.L. & Pub. Pol’y 103 (2005).

[3] See id. at 107 (quoting Statement on Judicial Nominations, White House Press Releases and Documents, Dec. 23, 2004, Factiva, Doc. No. WHPR000020041226e0cn00003).

[4] See id. at 141–48.

[5] See The Federalist No. 76, at 456 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (“[Senate advice and consent] would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”).

[6] See Richard Pérez-Peña, Hearing for Neil Gorsuch, Supreme Court Nominee, Is Set for March, N.Y. Times (Feb. 16, 2017), [].

[7] See, e.g., Editorial, The Stolen Supreme Court Seat, N.Y. Times (Dec. 24, 2016), []; Jason Sattler, Gorsuch faces supreme battle; Block him. The GOP doesn’t deserve to fill a seat it stole in the heist of the century., USA Today, Feb. 2, 2017, at 7A.

[8] See Presidential Commission on the Supreme Court of the United States, Final Report 14–15 (2021), []; see also id. at 75–77 (describing arguments that the Senate’s inaction on the Garland nomination amounted to “norm violations”).

[9] See id. at 140–43.

[10] See id.

[11] Adam White, Separate Statement of Commissioner Adam White (Dec. 15, 2021), [].

[12] Cf. Robert Barnes, Activists, academics step up pressure on Justice Breyer to retire, Wash. Post (June 16, 2021), []; Fatma Khaled, Justice Stephen Breyer, 83, Responds to Liberal Activists Pressing for His Retirement, Newsweek (Sep. 19, 2021), [].

[13] Cf. Editorial, supra note 7; Sattler, supra note 7.

[14] See Presidential Commission on the Supreme Court of the United States, supra note 8, at 114–15.

[15] Id. at 115.

[16] See, e.g., Neomi Rao, Why Congress Matters: The Collective Congress in the Structural Constitution, 70 Fla. L. Rev. 1 (2018); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath ix (1993) (“[T]he legislative surrender was a self-interested one: Accountability is pretty frightening stuff.”).

[17] See Adam J. White, The Senate’s Trial, Nat’l Rev. (Dec. 19, 2019), [].

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