Congress Courts & Litigation Executive Branch

Amy Coney Barrett on National Security Law

Lorenzo d’Aubert, Eric Halliday
Tuesday, October 20, 2020, 4:16 PM

Last month, President Trump nominated Judge Amy Coney Barrett to the Supreme Court. We reviewed several of Barrett’s writings to glean what they might reveal about her views on issues important to Lawfare readers.

President Trump announces Judge Amy Coney Barrett as his nominee for Associate Justice of the Supreme Court in the Rose Garden of the White House. (Official White House Photo by Shealah Craighead)

Published by The Lawfare Institute
in Cooperation With

On Sept. 26, President Trump nominated Judge Amy Coney Barrett to fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg eight days earlier. Much remains unknown about Barrett’s views on significant issues that will likely come before the Supreme Court in the near future. Barrett has a shallower track record on national security issues than her immediate predecessor nominees, in part because she has served as a federal judge for less time but also because her scholarship focuses on statutory interpretation and stare decisis. We reviewed several of Barrett’s writings from her time on the U.S. Court of Appeals for the Seventh Circuit (2017-2020), as a law professor (2001-2020), and as an attorney in private practice (1999-2001) to glean what they might reveal about her views on issues important to Lawfare readers.

Immigration Opinions

Barrett’s record on immigration is mixed, as she has ruled for the government in removing immigration petitioners and for immigration petitioners contesting their removal proceedings. Her rulings in immigration cases are particularly relevant in light of the questions of administrative deference frequently raised in this area of the law.

Cook Cty. v. Wolf, 962 F.3d 208 (7th Cir. 2020)

In Cook County v. Wolf, a panel of the U.S. Court of Appeals for the Seventh Circuit sustained a challenge to the Department of Homeland Security’s August 2019 regulation that expands the reach of the Immigration and Nationality Act’s public charge provision, 8 U.S.C. §1182(a)(4)(A), permitting exclusion of an immigrant because he or she is “likely at any time to become a public charge.” The majority concluded that the department’s interpretation was unreasonable under step two of the Chevron doctrine because it went beyond the boundaries of the statute by disproportionately penalizing disabled applicants, discouraging applicants from receiving benefits affirmatively authorized by Congress and disregarding the monetary value of benefits received. The department’s adoption of the rule also failed arbitrary and capricious review, in the majority’s view, by not adequately considering the consequences of its significant departure from the previous interpretation of “public charge,” including, among other outcomes, the potential chilling effect on immigrants and family members who fall outside the rule’s scope.

Barrett dissented, concluding that the Department of Homeland Security’s interpretation was reasonable. In Barrett’s view, the 1996 Welfare Reform Act amendments to the Immigration and Nationality Act’s public charge provision “increase[d] the bite of the public charge determination,” permitting the department to implement a more demanding standard that considers whether someone lacks self-sufficiency instead of focusing on those likely to be “primarily and permanently dependent” on government assistance, as did the previous 1999 interpretation.

Barrett argued that a textual analysis of the 1996 amendments justified the focus on self-sufficiency because those changes added a requirement for family-sponsored applicants to produce an enforceable affidavit of support from a sponsor, rendering the sponsor potentially liable for any means-tested benefit received by the noncitizen applicant. But Barrett’s focus on the text of the 1996 amendments—as she put it, in “excruciating” detail—did not contend with the majority’s arguments that the new rule disproportionately burdened disabled people and virtually prohibited receipt of certain benefits explicitly made available by statute.

Although Barrett’s reasoning was consistent with the Trump administration’s interpretation of “public charge,” she did not apply arbitrary and capricious review because it was not considered at the district court level, leaving open the possibility that she might find deficiencies with the rulemaking process, as the majority did. Both the majority opinion and Barrett’s dissent analyzed the department’s statutory interpretation under the Chevron framework of agency deference. In contrast to previous Supreme Court nominees, Barrett made no mention of Chevron’s inadequacy as a judicial standard, giving no indication as to how she would approach a Supreme Court case that revisits agency deference.

Yafai v. Pompeo, 912 F.3d 1018 (7th Cir. 2019); Denial of Rehearing en Banc

Barrett’s majority opinion in Yafai v. Pompeo reviewed the denial of a visa to Yemeni citizen Zahoor Ahmed. Ahmed and her husband, Mohsin Yafai, a U.S. citizen, alleged that they were denied due process when a U.S. consular officer denied the visa and failed to demonstrate any meaningful consideration of the application, raising the question of whether arbitrary or biased abuse of discretion occurred. The officer justified the denial of Ahmed’s visa on the grounds that she attempted to smuggle two children into the U.S.—a claim unsupported by any evidence and seemingly not reconsidered after the couple submitted documentation that both children had tragically drowned. Barrett affirmed the visa denial without reaching the due process claim by citing the doctrine of consular nonreviewability and the Supreme Court’s decision in Kleindienst v. Mandel (1972). Barrett emphasized that “Congress has delegated the power to determine who may enter the country to the Executive Branch, and courts generally have no authority to second-guess the Executive’s decisions.”

Absent an affirmative showing of bad faith, Barrett reasoned, Mandel requires a consular officer to merely offer a reason that is “facially legitimate and bona fide.” This standard was satisfied, Barrett argued, when the officer cited 8 U.S.C. § 1182(a)(6)(E), which provides that “[a]ny alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.” Consequently, in Barrett’s view, a court cannot “look behind the exercise of discretion.”

To Judge Kenneth Ripple in dissent and Chief Judge Diane Wood dissenting from the denial of rehearing en banc, Barrett’s interpretation of consular nonreviewability and Mandel went too far, abdicating judicial responsibility to ensure the executive branch executes immigration process according to statute and the Constitution. Appropriate deference to the executive, they argued, cannot reach so far as to rubber-stamp a visa denial decision as “facially legitimate and bona fide” where the adjudicating officer points to no facts or evidence that support a “naked” statutory citation for denial of a visa.

Barrett’s willingness to look past possible abuse of discretion and violation of due process decried by the dissenting judges echoes Chief Justice John Roberts’s deferential reasoning in Trump v. Hawaii (2018), which upheld Trump’s executive order banning entry of certain immigrants from majority Muslim nations. There, the president needed merely to find that admitting those immigrants would be detrimental to U.S. interests, a standard satisfied, Roberts concluded, despite concerns that the order violated the Establishment Clause of the Constitution.

Herrera-Garcia v. Barr, 918 F.3d 558 (7th Cir. 2019)

In Herrera-Garcia v. Barr, Rafael Giovanni Herrera-Garcia sought to avoid removal to El Salvador on the grounds that he would be tortured by gangs or corrupt government officials upon his return. Affirming the decisions of both an immigration judge and the Board of Immigration Appeals, both of which ordered Herrera-Garcia’s removal, Barrett and the other judges on the panel ruled that the administrative decisions were supported by substantial evidence in the record. She pointed to the fact that Herrera-Garcia had provided no evidence of torture or persecution when he lived in El Salvador, characterizing his testimony of being harassed by guerillas and watching them kidnap a friend as “stressful” and not rising to the necessary standard of severe pain and suffering. Moreover, she agreed with the immigration courts that Herrera-Garcia’s allegations of future torture were speculative and based only on the sociopolitical situation in the country and not on his own personal experience or expectations of specific persecution.

Alvarenga-Flores v. Sessions, 901 F.3d 922 (7th Cir. 2018)

In a similar case, Alvarenga-Florez v. Sessions, Barrett again wrote for the majority and denied a petitioner’s claim that deporting him to El Salvador would expose him to torture in violation of the Convention Against Torture. Gerson Alvarenga-Flores was apprehended crossing the U.S.-Mexico border without proper documentation and argued that he should be awarded asylum because of two incidents in El Salvador that made him flee out of fear for his life. First, he testified that he was riding in a taxi with friends that gang members fired on, killing one of his friends. Second, he said that a few days after the taxi attack, the same gang members boarded a bus and began to approach him, forcing him to escape. Both the immigration judge and the Board of Immigration Appeals had examined the record and found inconsistencies between Alvarenga-Flores’s oral and written testimony regarding those incidents, such as a discrepancy over whether he escaped the bus through the front or the back.

Operating under a standard of deference to the agency determination, Barrett and a colleague found that substantial evidence supported those rulings and therefore upheld the removal order against Alvarenga-Flores. Writing in dissent, Judge Thomas Durkin wrote that Alvarenga-Flores’s overall narrative had remained consistent throughout his proceedings, which the immigration judge ignored while homing in on two relatively minor inconsistencies regarding the location of various people during the two attacks.

Ruderman v. Whitaker, 914 F.3d 567 (7th Cir. 2019)

In another immigration case, Ruderman v. Whitaker, Barett wrote for a unanimous panel and granted an immigration plaintiff’s petition of review to determine whether the Board of Immigration Appeals had erred in not addressing one of the plaintiff’s arguments in appealing his removal order. Aleksey Ruderman had immigrated to the United States from Belarus in 2001 but was ordered to be removed in 2016 after having been convicted for two separate drunk driving offenses. He appealed the immigration judge’s decision in a pro se brief before retaining pro bono counsel that filed a second brief. In the second brief, the pro bono counsel conceded that Ruderman’s two separate convictions rendered him eligible for deportation, thereby overriding the argument to the contrary that Ruderman himself had raised in his initial brief. The board did not address Ruderman’s initial argument in its decision.

Barrett and her colleagues noted that a subsequent concession such as this waives an issue in federal court but questioned whether the same was also true before the board. Finding no answer to that question in the relevant case law, the panel remanded the case to the board for consideration of that question.

Morales v. Barr, 963 F.3d 629 (7th Cir. 2020)

Once again writing for a unanimous panel, this time one that contained two Democratic appointees, Barrett overturned the decisions of an immigration judge and the Board of Immigration Appeals and found that those judges’ denials of a petitioner’s request to avoid removal were wrongly decided. The United States Customs and Immigration Service (USCIS) targeted Yeison Meza Morales for removal in 2018 based on his status as an undocumented immigrant and a 2014 conviction for possession of marijuana. But Meza Morales had applied for a U visa, a form of immigration visa available to victims of violent crime, after being shot while fleeing an altercation that did not involve him in his Indianapolis neighborhood in 2013. During his removal proceedings, Meza Morales had asked the immigration judge to either continue his case or administratively close it, thereby temporarily setting aside his removal while he awaited the result of his U visa application. The judge refused to do so, and the board upheld that refusal.

This case turned on a complicated administrative law issue based on a recent Department of Justice decision regarding immigration judges and the board, which fall under the department’s administrative umbrella. The Justice Department had declared that immigration judges lacked the authority to administratively close cases—meaning to take a case off the procedural calendar, thereby allowing undocumented immigrants to pursue other legal protection, including U visas—except when a previous regulation or settlement agreement allowed it. This decision had overturned established USCIS procedure and compelled the immigration judges’ rulings against Meza Morales. Barrett wrote that the interpretive rationale underpinning the attorney general’s decision was unpersuasive and subsequently held that immigration judges have the general authority to administratively close cases without regard to previous regulations or settlement agreements. The panel then remanded the case to the board.

Herrera-Garcia could potentially illustrate Barrett’s views on deference to the executive branch in administrative law decisions. By following Supreme Court precedent in Kisor v. Wilkie (2019), which called for rigorous judicial review of administrative regulations before deferring to the agency’s own interpretation of that regulation, Barrett rejected the Justice Department’s argument that its interpretation deserved deference. Again, it is unwise to draw broader conclusions from single data points, but Herrera-Garcia at the very least illustrates Barrett’s willingness to aggressively scrutinize agency decisions when permissible under relevant precedent.

Fourth Amendment Cases

Barrett’s relatively brief record on Fourth Amendment issues shows a balanced approach, as she has ruled for both criminal defendants and the government in roughly equal numbers.

United States v. Watson, 900 F.3d 892 (7th Cir. 2018)

In two separate Fourth Amendment cases, Barrett wrote for unanimous panels in reversing criminal convictions that were built on unreasonable searches and seizures. United States v. Watson centered on the conviction of David Watson for possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). An anonymous tipster had called 911 in Gary, Indiana, and reported seeing boys “playing with guns” in a local parking lot. During the resulting Terry stop, Watson, the front-seat passenger, threw a gun onto the back-seat floor, causing the officers to arrest him. Appealing his conviction, Watson argued that the officers did not have reasonable suspicion to perform the stop.

Barrett and her colleagues on the U.S. Court of Appeals for the Seventh Circuit held that the officers did not have reasonable suspicion to make the stop, distinguishing the case from a recent Supreme Court precedent, Navarette v. California (2014), in which the court upheld a conviction based on an anonymous tip to a 911 call. Acknowledging that the case was a “close call,” Barrett nevertheless wrote that Navarette was inapposite because that case began with a 911 call reporting immediately dangerous illegal activity—suspected drunk driving—while here the reported activity of  people holding a gun was neither per se illegal in Indiana nor indicative of an immediate danger.

United States v. Terry, 915 F.3d 1141 (7th Cir. 2019)

In United States v. Terry, Barrett again wrote for a three-judge panel in holding that the search that led to a defendant’s arrest violated the Fourth Amendment. In 2012, a team of Drug Enforcement Agency agents executed an arrest warrant against Dimitris Terry outside of his apartment for his alleged involvement in a drug-trafficking ring. After arresting him, several agents remained behind and knocked on the door of his apartment. A woman wearing a bathrobe answered the door. The agents identified themselves and asked for her consent to search the apartment, without asking her who she was or how she knew Terry. The woman immediately let the agents inside and they searched the apartment, ultimately seizing several pieces of evidence that the prosecution used against him at trial.

The government argued that the woman who let the agents inside—who subsequently identified herself as the mother of Terry’s child—had apparent authority under Illinois v. Rodriguez (1990) to consent to the search of the apartment. Reviewing what the agents knew when they asked the woman for consent, Barrett wrote that they had no indication that the woman lived at the apartment beyond the presumption that she had spent the night there. The agents’ logical chain of presuming that the woman lived at the apartment, and thus was able to consent to a search, based purely on her appearance in a bathrobe, was insufficient under the reasonableness standard set in Rodriguez.

Both Watson and Terry fell well within the realm of routine search and seizure cases, and the facts in each case were not glaringly demonstrative of government unreasonableness. Therefore, Barrett’s rulings in both support the argument that she will not be an automatic vote for the government in Fourth Amendment cases that come before the Supreme Court. That is not to say that she will reliably support the interests of criminal defendants, however. Barrett wrote for the majority and denied defendants’ Fourth Amendment challenges in two other cases during her short time on the bench. 

United States v. Vaccaro, 915 F.3d 431 (7th Cir. 2019)

Like Watson, United States v. Vaccaro concerned the validity of a Terry stop and the defendant’s subsequent § 922(g) conviction for possessing a gun found during that stop, but this time Barrett wrote for the panel in rejecting Vaccaro’s appeal. Milwaukee police officers had stopped Travis Vaccaro for running a red light. After being pulled over, Vaccaro made a series of aggressive, agitated movements while sitting in the driver’s seat; and after officers ordered Vaccaro outside the car, he appeared to be suffering from paranoid delusions and under the influence of drugs. The officers later testified that they feared for their safety. Upon searching the car, the officers found a rifle in the backseat.

Vaccaro argued on appeal that the search of his car was not justified as a lawful protective search under Michigan v. Long (1983), which allows officers to conduct a warrantless search of the areas of a vehicle where a weapon might be hidden if they fear for their own safety. Pointing to Vaccaro’s furtive movements, the officers’ suspicions that he was under the influence of drugs, and the likelihood that he would have been allowed into his car at the conclusion of the stop if the officers had found no contraband that necessitated an arrest, Barrett wrote that the search of the car was reasonable.

United States v. Kienast, 907 F.3d 522 (7th Cir. 2018)

In United States v. Kienast, Barrett wrote for her colleagues and rejected the appeals of three defendants who challenged their convictions for various child sexual abuse material offenses. They argued that the FBI search of the child sexual abuse material-sharing online platform that they frequented violated the Fourth Amendment on several different grounds specifically relating to the agents’ use of a sophisticated tracking program called a Network Investigative Technique. Rather than reaching the merits of those arguments, however, the panel ruled that the search would not be excluded, even if it was unconstitutional, because the agents acted in good faith by executing a search warrant from a magistrate judge. The Supreme Court has held repeatedly that evidence obtained unreasonably in violation of the Fourth Amendment should not be excluded if the law enforcement officers were acting in good faith. Barrett applied that holding here and wrote that the officers could reasonably have relied on the warrant at issue, which authorized them to use the Network Investigative Technique, even though the warrant itself posed “difficult conceptual questions.” By applying the good-faith exception and holding that the FBI acted reasonably in preparing the affidavit for search warrants and executing the warrants themselves, Barrett and her colleagues avoided a more difficult question on the merits of the Network Investigative Technique warrant, which has “split district courts around the country.”

Qualified Immunity Under 42 U.S.C. § 1983

When it comes to cases in which plaintiffs sue government officials for violating their civil rights under 42 U.S.C. § 1983, Barrett has similarly ruled both for and against government officials.

Torry v. City of Chicago, 932 F.3d 579 (7th Cir. 2019)

In Torry v. City of Chicago, Barrett wrote for a unanimous panel in upholding a district court’s granting of qualified immunity to Chicago police officers who had stopped three black men in a car in 2014 to investigate a shooting. Barrett held that the officers’ actions were reasonable under Terry because the plaintiffs partially matched the description circulated to the officers of potential shooters and because the plaintiffs had driven by the area multiple times in the hours after the shooting. Therefore, the plaintiffs had not proved that the officers had violated “clearly established” constitutional rights, meaning that the officers were entitled to qualified immunity.

Additionally, when the plaintiffs filed their § 1983 suit in 2015, more than a year had passed since the stop occurred and the officers had no memory of the day. In defending themselves, the officers relied on a cell phone video taken by the plaintiffs during the stop and their contemporaneous police report. The plaintiffs argued that proving reasonable suspicion for the purposes of this litigation required that the officers have at least some independent memory of what they knew on the day of the stop, but the panel rejected that argument. Barrett wrote that, because the police report established that the officers were aware of the underlying shooting and the suspects’ descriptions at the time of the stop, the district court appropriately treated those facts as undisputed when ruling that the officers had reasonable suspicion to conduct the stop.

Estate of Biegert v. Molitor, No. 19-2837 (7th Cir. 2020)

Barrett also ruled for government officials in Estate of Biegert v. Molitor, a case regarding the § 1983 suit brought by the mother of a suicidal man whom police shot while performing a welfare check at his apartment. When Green Bay police officers arrived at Joseph Beigert’s apartment, they searched him for weapons but he struggled and attempted to escape their grasp. He then grabbed a kitchen knife and stabbed one of the officers before they shot him several times at close range; Biegert died at the scene.

Beigert’s estate contended that the officers acted unreasonably by creating the conditions that led to the violent struggle and his death. Writing for another unanimous panel, Barrett affirmed the district court’s grant of summary judgment to the officers, finding that the plaintiff’s argument was without merit. The Seventh Circuit has found officers to have acted unreasonably in precipitating violent conflicts in only rare situations—such as an officer jumping in front of a speeding taxi cab, causing his partners to shoot the driver to prevent him from being run over—and the panel held that such precedents were not applicable in this case. Additionally, Beigert’s estate argued that the officers’ use of deadly force was unreasonable, but Barrett also rejected that argument, finding that Beigert’s use of the knife against the officers constituted an immediate threat to their physical safety that warranted deadly force. 

Rainsberger v. Benner, 913 F.3d 640 (7th Cir. 2019)

But Barrett ruled for a § 1983 plaintiff in Rainsberger v. Benner. On the basis of an affidavit filed by Detective Charles Benner, the Marion County District Attorney’s Office charged William Rainsberger with the murder of his elderly mother but dropped the charges a year later because of evidentiary problems. Rainsberger then sued Benner under § 1983, alleging that the probable cause affidavits that he submitted to the prosecutor’s office were filled with lies and misleading statements. The district court declined Benner’s motion for summary judgment; and Barrett, writing for a unanimous panel, affirmed that decision.

This was a relatively straightforward case, as Benner insisted that he was entitled to qualified immunity even if the disputed facts regarding the veracity of the affidavit were true. Barrett rejected that argument and wrote that Benner’s alleged lies clearly violated Rainsberger’s established constitutional rights and that it would have been clear to a reasonable official that such conduct was unlawful in that situation, thereby fulfilling both requirements of the Seventh Circuit’s judicial test to deny an official qualified immunity. It is quite rare for officers to argue that they deserve qualified immunity even if they knowingly or recklessly lied in a probable cause affidavit that led to a defendant’s arrest, so this case should not be taken as a definite sign that Barrett will be an advocate for § 1983 plaintiffs on the Supreme Court, even though it shows her willingness to deny qualified immunity in egregious cases.

2017 Answers to Judiciary Committee Questions

During her 2017 Senate confirmation to the U.S. Court of Appeals for the Seventh Circuit, Barrett replied to Sen. Patrick Leahy’s national security- and executive authority-related written questions. Her answers are not especially revealing, but her emphasis on the president’s wartime and statutory limits are nevertheless noteworthy given the unprecedented assertions of executive authority by the Trump administration in the past three years. Moreover, Barrett’s 2017 answers contrast with responses provided during her recent Supreme Court confirmation hearing where, for example, she declined to say whether the president can unilaterally delay the upcoming November election, the date of which is set by clear federal statute.

Sen. Leahy: Is there any constitutional provision or Supreme Court precedent precluding judicial review of national security decisions?  

Amy Coney Barrett: No person is above the law. In all decisions, including those related to national security, the President is bound by the laws of the United States. If I am confirmed and a question related to executive power in a matter of national security comes before me as part of a case or controversy, I would resolve that issue as I would any other—by engaging in the judicial process, which includes examining the facts, reading the briefs, conducting necessary research, listening to the arguments of litigants, discussing the matter with colleagues, and writing and/or reading opinions. 

Sen. Leahy: In Hamdan v. Rumsfeld, the Supreme Court recognized that the President “may not disregard limitations the Congress has, in the proper exercise of its own war powers, placed on his powers.”

(a) Do you agree that the Constitution provides Congress with its own war powers and Congress may exercise these powers to restrict the President—even in a time of war?

(b) In a time of war, do you believe that the President has a “Commander- in-Chief” override to authorize violations of laws passed by Congress or to immunize violators from prosecution? Is there any circumstance in which the President could ignore a statute passed by Congress and authorize torture or warrantless surveillance? 

Amy Coney Barrett: [Barrett pledged to faithfully follow the Hamdan precedent as a circuit court judge and added:] Justice O’Connor famously wrote in her majority opinion in Hamdi v. Rumsfeld that: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.”


In her academic writing, Barrett, a self-described originalist and textualist, has focused on how these methods of interpretation define the judicial role and, in particular, how they inform the Supreme Court’s approach to revisiting or overturning precedent. For example, Barrett has written that a stronger presumption of irreversibility applies to precedents based on statute than those based on the Constitution. Her work on the Suspension Clause and commentary on congressional acquiescence are noteworthy for their potential insight on her views of executive authority. 

Suspension Clause and Nondelegation

In a 2014 Cornell Law Review article, “Suspension and Delegation,” then-Professor Barrett argued that the history and text of the Suspension Clause of the Constitution limits Congress’s ability to delegate the authority to suspend habeas corpus to the president. Suspending the ability of a detainee to challenge their imprisonment is unique among legislative powers granted to Congress in Article I of the Constitution. Congress itself must determine, in Barrett’s view, that a “rebellion” or “invasion” exists before delegating to the president the authority to suspend the privilege when “the public safety may require it.” Only the Civil War-era legislation ratifying President Lincoln’s unilateral suspension satisfied this standard; subsequent, broad delegations of suspension authority within U.S. territories were unconstitutional, Barrett argued.

Barrett’s delineation of the limits of congressional delegation in the Suspension Clause context raises the question of whether she might apply a similar approach to the Supreme Court’s nondelegation doctrine—the dormant set of limits applied to Congress’s ability to delegate its legislative power generally. Despite its focus, the article does not shed definitive light on Barrett’s predisposition for strengthening the nondelegation doctrine, as was recently advocated by Justice Neil Gorsuch dissenting in Gundy v. United States (2019). Barrett separated Suspension Clause delegation from the larger doctrine:

The Constitution’s wariness of executive power, combined with the relatively exacting approach traditionally taken to statutes affecting fundamental rights, support a more demanding application of the nondelegation doctrine in this context than in the vast field of social and economic legislation in which the Necessary and Proper Clause gives Congress the authority to implement its Article I powers as it sees fit.

While acknowledging that “the modern nondelegation doctrine imposes few limits upon Congress’s ability to shift policymaking discretion to the Executive[,]” Barrett emphasized that the unique nature of the Suspension Clause as a guarantor of fundamental rights warrants heightened scrutiny of delegation to the executive.

Congressional Acquiescence

In a 2019 lecture at Case Western Reserve School of Law, Barrett offered her view on several, in her words “baseless but frequently repeated statements” common to legal analysis, following on Justice Antonin Scalia’s lecture 30 years earlier entitled “Assorted Canards of Contemporary Legal Analysis.”

Devoting most of her comments to explaining her conception of textualism, Barrett concluded by attempting to dispel the notion that congressional inaction following a judicial ruling that interprets a statute signals the legislature’s approval. Acquiescence by a current Congress should not matter in the first place, she argued, when a previously enacted statute is at issue. Even if congressional silence did matter, she pointed out, “there is no way to reliably count on congressional silence as a source of information.” Congress may disagree with the judiciary but may not be able to practically express that disagreement given the many obstacles to enacting legislation. In Barrett’s view, equating congressional inaction with agreement also misunderstands the Constitution’s separation of powers because silence is not the standard by which the Constitution gives legal effect to Congress’s work—only passing a bill in both houses and presenting it to the president confers the force of law.

“Congress can’t shirk the responsibility of acting, sidestep procedural obstacles, or skirt the President’s veto power in the name of efficiency. And courts can’t usurp any of those same powers by assuming away the bicameralism and presentment requirements,” Barrett said.

Barrett’s lecture and her 2005 law review article “Statutory Stare Decisis in the Courts of Appeals” criticize congressional acquiescence when it comes to assessing the strength of statutory precedent. But congressional inaction can also play a significant role in the balance of power and norms between the executive and legislative branches. It is not clear, for example, if a Justice Barrett would apply similar reasoning to a conflict between the president and Congress, where, as Justice Robert Jackson suggested in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer (1952), “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress ... may be treated as a gloss on ‘executive Power’ vested in the President by s 1 of Art. II.”

Advocacy on Behalf of the NCRI

National Council of Resistance of Iran v. Department of State, 251 F.3d 192 (D.C. Cir. 2001)

During her brief tenure in private practice at Miller, Cassidy, Larroca & Lewin, L.L.P., Barrett helped draft two briefs in a petition for review of a State Department designation of a “foreign terrorist organization” before the U.S. Court of Appeals for the D.C. Circuit in 2000. Barrett’s client, the National Council of Resistance of Iran (NCRI), a political coalition of Iranian dissident organizations in exile, challenged the State Department’s 1999 designation of the group as an alias of its primary constituent member, the People’s Mojahedin Organization of Iran, itself designated a foreign terrorist organization in 1997 and 1999.

Barrett and three co-counsel argued that the two organizations were separate entities and that the statute requiring the court to set aside a designation “lacking substantial support in the administrative record” demanded that a lawful designation be supported by specific, reliable information. The State Department exceeded its statutory authority and denied NCRI due process of law, the briefs argued, when it summarily applied the alias designation without sufficient supporting findings. The pleadings also contended that because NCRI had sufficient contacts in the U.S., it was entitled to procedural due process including notice and a hearing.

Judge David Sentelle, writing for a unanimous D.C. Circuit panel, disagreed that the State Department exceeded its authority in its NCRI designation but remanded the case to the State Department because, absent the Department’s showing of particularized need, NCRI was entitled to due process including notice of the designation and an opportunity to effectively be heard.

Lorenzo d’Aubert is a third-year student at Harvard Law School. Prior to law school, he worked as an aide to U.S. Senator Claire McCaskill.
Eric Halliday is a graduate of Harvard Law School, where he was Co-Editor in Chief of the National Security Journal. He holds a B.A. in Political Science and Italian Studies from Tufts University.

Subscribe to Lawfare