The Institution Matching Canon

ABSTRACT-This Article identifies and analyzes a transsubstantive tool of constitutional doctrine that to date has escaped scholarly attention. The Article terms this device the "institution matching" canon. It can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest-which may or may not be directly judicially enforced otherwise-a court should determine whether the component of government that made the decision has actual competence in and responsibility for the policy justifications invoked to curtail the interest. If not, the court should reject the government action but leave open the possibility of a "do-over" by a more appropriate component of government. First identified in an early written opinion of Justice John Paul Stevens, the institution matching canon continues to play an important if imperfectly articulated role in criminal law, administrative law, and national security doctrine. This Article provides a systematic survey of the ways that the Court has employed institution matching and develops a taxonomy of the canon's costs and benefits. INTRODUCTION A central problem in American constitutionalism is the translation of abstract textual precommitments into stable and predictable doctrine-the "set of rules and methods . . . used to decide a particular class of cases."1 Analyzing constitutional doctrine, scholars use two distinct lenses. Some limit their attention to a specific provision in the Constitution, such as the Commerce Clause2 or the First Amendment's Free Speech Clause,3 and explore optimal doctrinal specifications of that rule. Others employ a wider, transsubstantive lens to isolate devices found across different areas of the law, such as the "strict scrutiny" test4 or the "clear statement" rule.5 Both kinds of inquiry assess the decision rules courts use to implement the Constitution. Does the work product of the Supreme Court, they ask, work to promote the Constitution's goals?6 This Article, working in the second vein of scholarship, identifies and analyzes a transsubstantive tool of constitutional law that to date has escaped scholarly attention. I label this device the "institution matching" canon. The institution matching canon can be stated briefly as follows: When the government makes a decision that may impinge upon a liberty or equality interest-which may or may not be directly judicially enforced otherwise-a court should determine whether the component of government that made the decision has actual competence in or responsibility for the policy justifications invoked to curtail the interest. Only if the relevant institution is in fact tasked with furthering the relevant policy goals, or if it can demonstrate that it has in fact applied expertise, should the court allow the liberty or equality interest to be narrowed. Otherwise, the court should reject the governmental action. In doing so, however, the court shall not imply or assert that the government cannot achieve the same policy goal through the use of a different component of government. Rather, the court shall leave it up to the government to decide whether to seek a "do-over" with a different governance instrument. The institution matching canon emerges in the early jurisprudence of Justice John Paul Stevens. It is one of his many important contributions to U.S. public law across five years on the Court of Appeals for the Seventh Circuit and thirty-four years on the U.S. Supreme Court. Notably, it emerged in Justice Stevens's very first decisions as a Justice. It is evidence that, from his early days on the Court, Justice Stevens had a particularly clear grasp on the nettlesome problem of giving operational force to the lofty, often opaque commitments of the Constitution. Unlike other Justices, Justice Stevens has never confused the Constitution's terrain with the doctrinal map that the Court must develop in common law fashion to guide other judges and governmental actors. …