Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
Released: 2016-04-27T00:00:00

O n March 16, 2016, President Obama nominated Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the vacancy on the Supreme Court created by the unexpected death of Justice Antonin Scalia in February. Judge Garland was appointed to the D.C. Circuit by President Clinton in 1997, and is currently its chief judge, an administrative position that rotates among the active judges on the circuit. Prior to his appointment to the bench, Judge Garland served in the Criminal Division of the U.S. Department of Justice (DOJ), where he notably oversaw the prosecution of the 1995 Oklahoma City bombing case, as well as other cases. It remains to be seen whether or how the Senate might proceed in considering Judge Garland's nomination; however, his nomination generally remains effective until it is withdrawn or this term of Congress ends, whichever occurs first.

This report provides an overview of Judge Garland's jurisprudence and discusses what the impact on the Supreme Court might be if he, or a judge of a similar judicial philosophy, were to be confirmed to succeed Justice Scalia. In attempting to ascertain how the Court's jurisprudence could be affected if Judge Garland were to fill the vacancy created by Justice Scalia's death, however, it is important to note at the outset that it is difficult to predict accurately an individual's service on the Court based on his prior experience for various reasons. Accordingly, a section of this report entitled " Predicting Nominees' Future Decisions on the Court " provides a broad context and framework for evaluating how determinative a lower court judge's prior record may be in predicting future votes on the Supreme Court.

The report focuses on those areas of law where Justice Scalia can be seen to have influenced the High Court's approach to particular issues, or served as a fifth and deciding vote on the Court, with a view toward how Judge Garland might approach that same issue if he were to be confirmed. The report begins with his views on two cross-cutting issues—the role of the judiciary and statutory interpretation. It then addresses 14 separate areas of law, which are arranged in alphabetical order from "administrative law" to "takings." Within each of these sections, the report reviews whether and how Judge Garland has addressed particular issues in opinions he authored or joined, or in other votes in which he participated (e.g., votes regarding whether the D.C. Circuit should grant en banc review to decisions of three-judge circuit panels). The report analyzes majority, concurring, and dissenting opinions, as well as opinions of three-judge district court panels in which Judge Garland participated. Where relevant, the report also notes Judge Garland's writings prior to joining the D.C. Circuit, which often centered upon issues of administrative or antitrust law.

The report discusses numerous cases and votes involving Judge Garland. However, it focuses particularly on cases in which Judge Garland participated that divided the D.C. Circuit, as these cases arguably best showcase how he might approach a legal controversy whose resolution is a matter of dispute and is not predetermined by prior case law. In addition, the report highlights areas where Judge Garland demonstrated views on the law that contrasted with the views of some of his colleagues. Moreover, to the extent that Judge Garland's votes in particular cases may reflect broader trends and tendencies in his decisionmaking that could be manifested if he were to be confirmed to the Court, the report highlights such trends. Nonetheless, this report does not attempt to catalog every matter in which Judge Garland participated during his 19 years of service on the D.C. Circuit. A separate report, CRS Report R44484, Majority, Concurring, and Dissenting Opinions Authored by Judge Merrick Garland , coordinated by [author name scrubbed], lists all opinions authored by Judge Garland during his tenure on the D.C. Circuit.

Other CRS products discuss various issues related to the vacancy on the Court. For an overview of available products, see CRS Legal Sidebar WSLG1526, Vacancy on the Supreme Court: CRS Products , by [author name scrubbed] and [author name scrubbed].

Predicting Nominees' Future Decisions on the Court

It is important to note at the outset of this report that, at least as a historical matter, attempting to predict how particular Supreme Court nominees may approach their work on the High Court based on their previous experience is a task fraught with uncertainty. For example, Justice Felix Frankfurter, who had a reputation as a "progressive" legal scholar prior to his appointment to the Court in 1939, disappointed some as he became a voice for judicial restraint and caution when the Court reviewed laws that restricted civil liberties and civil rights during World War II and the early Cold War era. Similarly, Justice Harry Blackmun, who had served on the U.S. Court of Appeals for the Eighth Circuit for a little over a decade prior to his appointment to the Court in 1970, was originally considered by President Richard Nixon to be a "strict constructionist," in the sense that he viewed the judge's role as interpreting the law, rather than making new law. In the years that followed, however, Justice Blackmun authored the majority opinion constitutionalizing the right to terminate a pregnancy in Roe v. Wade , and was generally considered one of the more liberal voices on the Court by the time of his retirement in 1994.

The difficulty in attempting to predict future Supreme Court votes remains even when the nominee has had as lengthy a federal judicial career prior to nomination as Judge Garland. Federal appellate judges are bound by Supreme Court and circuit precedent and, therefore, are not normally in a position to espouse freely their views on particular legal issues in the context of their judicial opinions. Moreover, unlike the Supreme Court, which enjoys "almost complete discretion" in selecting its cases, the federal courts of appeals are required to hear many cases as a matter of law and, as a result, tend to hear "many routine cases in which the legal rules are uncontroverted." Perhaps indicative of the nature of federal appellate work, the vast majority of cases decided by three-judge panels of federal courts of appeals are decided without dissent. Unanimity is particularly frequent on the D.C. Circuit where Judge Garland serves. Accordingly, while Judge Garland's work on the D.C. Circuit may provide some insight into his general approach toward particular legal issues, the bulk of the opinions that Judge Garland has authored or joined may not be particularly insightful with regard to his views on specific areas of law or how he would approach these issues if he were a Supreme Court Justice.

Even in closely contested cases where concurring or dissenting opinions are lodged, it still may be difficult to determine the preferences of the nominated judge if the nominee did not actually write an opinion in the case. The act of joining an opinion authored by another judge may not necessarily reflect full agreement with the underlying opinion. For example, some judges, in an effort to promote consensus on a court, will refuse to dissent unless the underlying issue invokes particularly strong disagreement. As one commentator notes, "[T]he fact that a judge joins in a majority opinion may not be taken as indicating complete agreement. Rather, silent acquiescence may be understood to mean something more like 'I accept the outcome in this case, and I accept that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed on.'"

The caution with which one interprets a judge's vote isolated from a written opinion may be particularly important in the context of a judge's votes with respect to procedural matters. A judge's vote to grant an extension of time for a party to submit a filing, for example, generally does not signal any sort of agreement with the substantive legal position proffered by that party. Thus, while votes by Judge Garland in favor of having certain cases—which had been ruled on by three-judge panels—reconsidered by the D.C. Circuit sitting en banc have garnered considerable attention from some examining his judicial record, those votes should be interpreted with some degree of caution. On the one hand, a vote to rehear a case en banc could signal disagreement with the legal reasoning of the panel decision and may suggest that a judge wants the entire court to have an opportunity to correct a perceived error by the panel. On the other hand, as one federal appellate judge noted in dissenting from a decision to deny a petition for rehearing en banc,

Most of us vote against most such petitions and suggestions even when we think the panel decision is mistaken. We do so because federal courts of appeals decide cases in three judge panels. En banc review is extraordinary, and is generally reserved for conflicting precedent within the circuit which makes application of the law by district courts unduly difficult, and egregious errors in important cases.

As a consequence, a vote for or against rehearing a case, or on other procedural matters does not necessarily equate to an endorsement or repudiation of a particular legal position.

Finally, it should be noted that, despite having served on the federal appellate bench for nearly two decades, Judge Garland has said very little about some areas of law because of the nature of the D.C. Circuit's docket, and as a consequence, it may be difficult to predict how he might rule on certain issues if he were elevated to the Supreme Court. Because of its location in the nation's capital and because of various jurisdictional statutes, the D.C. Circuit hears a significant number of cases on administrative and environmental law matters. In contrast, cases at the D.C. Circuit rarely, if ever, involve "hot-button" social issues such as abortion, affirmative action, or the death penalty. As a result, this report focuses primarily on areas of law where Judge Garland has written extensively, and notes only in passing those areas where little can arguably be gleaned from his judicial record on account of Judge Garland having participated in few, if any, decisions directly addressing those particular areas of law.

Role of the Judiciary

In contrast to Justice Scalia, who was a well-known proponent of originalism and textualism both within and outside the Court, regularly arguing his views on the lecture circuit and dissenting from opinions that, in his view, failed to construe legal texts in accordance with their ordinary meaning at the time of drafting, Judge Garland's approach to the craft of judging is less immediately apparent. In a questionnaire submitted to the Senate Judiciary Committee in conjunction with his nomination to the D.C. Circuit in 1995, Judge Garland wrote of the limited role that judges have under the Constitution, noting that "federal judges do not have roving commissions to solve societal problems," and the "role of the court is to apply the law ... not to legislate, not to arrogate to itself the executive power, not to hand down advisory opinions on the issues of the day." Judge Garland echoed these sentiments in the statement he issued upon his nomination to the Supreme Court. During the hearing on his 1995 nomination, Judge Garland also told Senators that among the Supreme Court Justices he most deeply admired were Chief Justice John Marshall, the author of Marbury v. Madison ; Justice Oliver Wendell Holmes, Jr., the great dissenter of the early 20 th century; and Justice William Brennan, the judge for whom Judge Garland clerked.

Beyond these general statements, though, Judge Garland has not articulated any overarching legal philosophy in a manner akin to Justice Scalia. In his public appearances outside the court, Judge Garland has tended to participate in conferences on discrete issues, such as prosecutorial misconduct, indigent criminal defense, or changing the rules of civil procedure, rather than broadly discussing or defending particular interpretative methodologies. In his judicial opinions, Judge Garland has, at times, utilized originalism as a method of constitutional interpretation, including in a jointly issued 2000 opinion that relied on the Constitution's text and structure, as well as materials from the 1787 Constitutional Convention and subsequent ratifying conventions, in rejecting a lawsuit brought by a group of DC voters seeking the right to elect representatives to Congress. On the other hand, in neither that opinion nor in other opinions has Judge Garland purported to rely on originalism or textualism as the sole or primary method of interpreting the law.

Nonetheless, even without more comprehensive explanations from Judge Garland outlining his specific judicial philosophy, the nominee's writings provide some insights into his approach to judging. First and foremost, Judge Garland has been widely viewed as a meticulous and cautious jurist, writing with precision and an eye toward ensuring that the court does not overreach in any particular case. Trudeau v. Federal Trade Commission (FTC) , the opinion of Judge Garland that has been most widely cited by other judges, may be seen as illustrative of this approach . There, Judge Garland, on behalf of a unanimous three-judge panel, affirmed the dismissal of a complaint lodged by Kevin Trudeau, an author and producer of television and radio infomercials, which had alleged that an FTC press release about him was "false and misleading," exceeded the agency's statutory authority, and violated his First Amendment rights. The case raised several difficult issues of federal jurisdiction and administrative law that had split the circuit courts of appeals in previous cases. However, in his opinion, Judge Garland succinctly clarified two complex jurisdictional questions; avoided resolving a weighty administrative law question as to whether an agency's press release could amount to "final agency action" under the Administrative Procedure Act (APA), a question raising serious issues about the propriety of older D.C. Circuit precedent; and rested the decision on the less controversial grounds that the substance of Trudeau's complaint was simply legally insufficient. As one commentator noted, the Trudeau case "stands out" among Judge Garland's cases as exemplifying his ability to examine a complicated area of law, while at the same time limiting the court's ruling to the matters necessary to resolve the case.

Trudeau exemplifies the relatively circumspect nature of Judge Garland's judicial work, something that is arguably reflected more generally throughout the nominee's judicial career. This caution is seen especially in the numerous concurring and dissenting opinions where Judge Garland has taken issue with majority opinions that have, in his view, reached issues that were unnecessary to the ultimate holding of the court. Perhaps the best indication of Judge Garland's minimalist approach to judging is provided by looking at how the Supreme Court has evaluated his work, a topic further detailed in Table 1 . Perhaps surprisingly for a jurist who has served on an important federal appellate court for nearly two decades, none of Judge Garland's written opinions have even been reviewed in a formal opinion by the Supreme Court. This suggests that Judge Garland's opinions tend to be crafted to avoid unnecessary controversy that might prompt review by the High Court. Moreover, only nine opinions that Judge Garland joined have been the subject of a subsequent opinion by the Supreme Court. Of these nine opinions, five were ultimately affirmed or otherwise supported in part by the High Court. This is a notably high affirmance rate—given that the Court in recent years has, on average, reversed the lower court in over 70% of all cases it heard —and perhaps indicates the cautious nature of Judge Garland's jurisprudence.

Another notable aspect of Judge Garland's opinions is that they appear, at times, to be motivated by pragmatic concerns about how particular rulings may affect the democratic branches of government. For example, in Wagner v. Federal Election Commission (FEC) , Judge Garland, writing on behalf of a unanimous en banc court, upheld against a First Amendment challenge a law that generally banned individuals who contract to perform services for federal agencies from contributing to federal campaigns while they are negotiating or performing the contract. Notably, approximately one-fourth of Judge Garland's opinion for the court in Wagner was devoted to the "long historical experience" of corruption involving federal contractors, which he viewed as evidencing that "the concerns that spurred [congressional action] remain as important today as when the statute was enacted," a considerable portion of a legal opinion to be devoted to a historical record.

Nor is Wagner the only case in which Judge Garland expressed concerns about how a court's ruling could affect the work of the political branches. In the criminal law context, Judge Garland dissented from the D.C. Circuit's en banc ruling in Valdes v. United States. In Valdes , a majority of the court, motivated in part by concerns about whether the underlying statute provided the criminal defendant sufficient notice of the criminality of his conduct, held that a police officer who took money from an undercover federal agent, in exchange for looking up license plate numbers and outstanding warrants in a police database, could not be prosecuted under the federal antigratuity statute. Judge Garland dissented out of a concern that the majority opinion had interpreted the statute too narrowly to avoid "absurdities" not at issue in the case and, in so doing, "denied the government an important weapon in fighting official corruption." In this sense, as one commentator has noted, Judge Garland may be "more likely" to favor "pragmatic arguments that certain" interests (like criminal defendants' right to receive notice that their acts are against the law) should be interpreted "flexibly, with an eye toward the practical consequences of given rules." Such an approach toward judging arguably echoes Judge Garland's writings prior to his appointment to the D.C. Circuit, when he wrote, in the context of antitrust law, that the judiciary should generally "not interfere ... with a state's political decision...." Thus, a general skepticism of judicial interference with the work of the political branches for reasons of pragmatism appears to underlie Judge Garland's often relatively functional approach to judging and could contrast with Justice Scalia's formalism if Judge Garland were confirmed to the High Court.

Finally, commentators have suggested that Judge Garland's approach to judging tends to embrace compromise, consensus-building, and collegiality in particularly difficult or high profile matters where plausible arguments could be made by either side. In this vein, perhaps the sharpest contrast between Judge Garland and the Justice he could succeed may lie in their respective personalities and temperaments, especially with respect to how each approaches the role of writing a judicial opinion that garners the majority of jurists on a court. While the subject of Justice Scalia's personality in the abstract has been a topic of general debate among legal scholars, it is important to note that, relative to the tone of Judge Garland's opinions, Justice Scalia's writing could be quite pointed and acerbic in style. More importantly, Justice Scalia's often-strict adherence to his originalist judicial philosophy at times resulted in him writing fairly broad opinions that did not garner the votes of the majority of the Court, as his colleagues were unwilling to embrace wholly Justice Scalia's take on the law. In contrast, Judge Garland may be less pointed in his approach to judging, particularly with respect to his writing style. Following Judge Garland's recent nomination to the Supreme Court, his D.C. Circuit colleague, Judge Brett Kavanaugh, widely viewed as a one of the more conservative members of that court, spoke highly of the new nominee, describing Judge Garland as "a brilliant jurist," "a great Chief Judge," "thoughtful," "collegial," "considerate," and someone "who works well with others." Such sentiments are echoed by lawyers who have practiced in front of Judge Garland. Anonymous evaluations in the Almanac of the Federal Judiciary uniformly describe him with regard to his legal ability in positive terms, including having an "excellent temperament" and being "courteous" and "cerebral."

Such comments appear not to be merely abstract descriptions of Judge Garland's personality; instead Judge Garland's judicial writings could be seen to reflect a tendency toward consensus-building. For example, for having such a lengthy career on the D.C. Circuit, Judge Garland has dissented relatively infrequently—on average, less than once per year —something that suggests he may value collegiality above adhering to a particular legal orthodoxy in his legal writings. Moreover, when Judge Garland has written the majority opinion for a court, his opinions have tended to garner few separate opinions relative to many of his colleagues on the D.C. Circuit, which may indicate that the nominee places a high value on reaching a consensus in the opinions he writes. Judge Garland's supporters suggest that, because of his tendency to consensus-building, he may be able to find agreement among colleagues with disparate views on the law in especially contentious cases if he were to be elevated to the Supreme Court. While it is impossible to firmly predict how Judge Garland's past work might impact any future service on the High Court, his work on the D.C. Circuit on a number of high profile matters could be said to support such claims. For example, in 2003, Judge Garland authored a unanimous opinion, joined by a Reagan-era Supreme Court nominee, Judge Douglas Ginsburg, and Judge Harry T. Edwards, an appointee of President Jimmy Carter, which rejected a challenge alleging that, in the circumstances of the case, Congress had exceeded its powers under the Commerce Clause when enacting the Endangered Species Act. Subsequently, in 2008, in Parhat v. Gates , Judge Garland wrote for the court in invalidating a determination by a Guantanamo Bay combatant status review tribunal that the petitioner was an enemy combatant, a conclusion joined by Judges David Sentelle and Thomas Griffith—sometimes viewed as two of the court's more judicially conservative members —who sit on a court that often takes a skeptical view of the rights of detainees vis-a-vis the rights of the government. Similarly, Judge Garland's 2015 opinion on behalf of a unanimous en banc court in Wagner on the ever-contentious issue of the constitutionality of campaign finance regulations may speak to the nominee's tendency to be able to garner the support of disparate colleagues in potentially difficult cases. Judge Garland's ability to garner unanimous opinions in such cases resolving legal issues that have tended to sharply divide the High Court in recent years may demonstrate his willingness to prioritize collaboration above ideological rigidity in his work.

Statutory Interpretation

Unlike Justice Scalia, who publicly advocated for textualism and a canons-based approach to statutory interpretation, Judge Garland does not appear to have articulated an overarching approach to or philosophy of statutory interpretation. However, his practices when construing statutes in his published opinions could be said to resemble those of many other judges, with a couple of exceptions noted below, in that he generally bases his conclusions about a statute's meaning upon consideration of multiple factors including the text, structure, context, and history of specific statutory provisions. For example, in his dissenting opinion in United States ex rel. Totten v. Bombardier Corp. , Judge Garland relied, in part, upon the "plain text" of the False Claims Act (FCA) in rejecting the majority's view that presentment of a false or fraudulent claim to the federal government was effectively required for liability under an FCA provision that had "no express requirement of presentment to an officer or employee of the United States Government." He also pointed to other provisions of the FCA and, in particular, its definition of "claim," which he noted did not require presentment of a false or fraudulent claim to the federal government. In addition, he drew support for his proposed interpretation from the legislative history of the FCA, as well as prior interpretations of the act by the D.C. Circuit.

Judge Garland's approach to construing statutory text can also be seen as fairly mainstream—and even to resemble that of Justice Scalia —in that Judge Garland often highlights how people would normally understand specific statutory terms. For example, in his opinion for the court in Southeast Alabama Medical Center v. Sebelius , Judge Garland found that the Department of Health and Human Services (HHS) had properly included fringe benefits when calculating hospitals' "wage and wage-related costs" because, if fringe benefits were not to be seen as wages, they "fit comfortably within the broad meaning of the term 'wage-related.'" Similarly, in his opinion for the court in Public Citizen, Inc. v. HHS , Judge Garland noted how people would normally understand the term "disposition" when rejecting HHS's argument that Medicare peer-review organizations (PROs) had met their obligation to disclose the "final disposition of [patients'] complaint[s]" by sending a form letter that noted that the PRO had reviewed the complaint and would take appropriate action, but did not specify what action was to be taken. According to Judge Garland, most people would not see these form letters as disclosing the final disposition of the complaint, because the words "final disposition" are "far more persuasive[ly] read[]" to mean informing persons of the "substantive result or conclusion" of a matter, not merely that the matter has been completed. Notably, Judge Garland has sometimes referenced dictionary definitions of statutory terms in such discussions, a practice that often factors in textualist approaches (although Judge Garland does not appear to have displayed any particular concern with ensuring that these definitions are contemporaneous with the statute's enactment, as Justice Scalia did). However, Judge Garland very seldom expressly invokes the phrase "original meaning," which was a key component of Justice Scalia's approach to textualism, and can serve as an indicator of a similar interpretative approach.

In addition, Judge Garland's approach to statutory interpretation can be seen to resemble other judges' approaches in that he often refers to commonly accepted "canons"—or general principles—of statutory interpretation. Judge Garland has invoked many different interpretative canons in the opinions he has authored while on the D.C. Circuit, including, but not limited to, canons providing that (1) similar language in the same or related statutes is to be construed similarly; (2) when Congress uses particular language in one section of a statute, but omits this language in another section of that same statute, it is presumed to have acted "intentionally and purposely in the ... exclusion"; (3) courts are to give effect to every clause and word of a statute, if possible; (4) words used in the singular are presumed to include the plural; (5) specific terms in a statute usually prevail over general ones; (6) repeals by implication are disfavored and are not to be presumed to have occurred; (7) titles or headings in statutory text provide only limited interpretative aid and are not meant to take the place of detailed provisions of the text; (8) Congress is presumed to know how courts have construed particular statutory language when it enacts other statutes using that same language; (9) the inclusion of some things in a list means the exclusion of other things not listed; and (10) the word "or" is disjunctive, meaning that only one item in a list need be satisfied. However, Judge Garland's resort to these and other canons of statutory interpretation appears to be driven by the specific statutory text in question and, in particular, whether one or more canons may be seen as helpful in construing the statutory text. It does not appear to be driven by a desire for standards or rules, per se, as means to cabin judicial discretion, as was the case with Justice Scalia.

Two aspects of Judge Garland's practice in construing statutory text can be seen as more distinctive. One is the frequency with which he finds that statutory language is ambiguous, a finding which means that courts must generally defer to the agency's interpretation of the statutory language. Specifically, Judge Garland seems to have not infrequently taken the view that particular statutory terms which are not defined, or whose meaning is not expressly prescribed by Congress, are ambiguous. His dissenting opinion in Financial Planning Association v. Securities and Exchange Commission (SEC) can be seen to illustrate this practice. The case centered upon provisions of the Investment Advisers Act that, in relevant part, exempt from regulation under the act:

[1] any broker or dealer ... whose performance of [investment advice] services is solely incidental to the conduct of his business as a broker or dealer and ... who receives no special compensation therefore; ... or

[2] such other persons not within the intent of this paragraph, as the Commission may designate by rules and regulations or order.

The majority took the view that this statutory language unambiguously precluded the SEC from exempting broker-dealers who received "special compensation" from regulation under the act on the grounds that the first of these exemptions is "all inclusive" of broker-dealers because it uses the word "any." Thus, in the majority's view, broker-dealers who receive "special compensation" are excluded from the phrase "other persons not within the intent of this paragraph," and the SEC cannot rely upon this language to exempt broker-dealers who receive "special compensation" from regulation under the act. Judge Garland disagreed, viewing the phrases "such other persons" and "within the intent of this paragraph" as inherently ambiguous. In so doing, he noted the lack of any language in the statute that purported to bar the SEC from exempting under the second provision broker-dealers who are not covered by the first provision, as well as the absence of a definition of "other persons" in the act.

Judge Garland's assessment of when or whether statutory text is ambiguous is significant because statutory text must be found to be ambiguous for a court to defer to an administrative agency's interpretation of that text under the precedent of Chevron U.S.A., Inc. v. Natural Resources Defense Council ; if the text is seen as unambiguous , "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Indeed, Judge Garland's penchant for finding ambiguity in statutory texts would seem to underlie the observation of one D.C. Circuit judge, who dissented from another opinion authored by Judge Garland, that "some will find ambiguity even in a 'No Smoking' sign," although this tendency could be seen to reflect a more generalized desire by Judge Garland to avoid having the courts constrain the options of the political branches.

The other notable aspect of Judge Garland's approach to statutory interpretation involves his willingness to consider legislative history materials in construing statutory text. Indeed, his resort to legislative history materials when construing statutes can be seen as interrelated with his willingness to find ambiguity in statutory text, as he has characterized the consideration of legislative history ma terials as "appropriate" when statutory text is ambiguous. For example, in the Totten case mentioned earlier, the majority opinion by then-Judge John Roberts criticized Judge Garland's dissenting opinion, which the majority characterized as having excessively relied upon legislative history materials to construe the FCA. According to then-Judge Roberts, "[t]he dissent literally begins and ends with legislative history.... We [in the majority] will end as we began, too, but with the statutory language." However, the disagreement among the Totten panel could be characterized as something less than a dispute between judges with radically different philosophies of statutory interpretation. Judge Garland's opinion in Totten characterizes the "existing statutory text" as the "starting point in discerning congressional intent," and the Totten majority also made use of legislative history materials.

Judge Garland's use of legislative history materials in other cases can also be seen as relatively restrained in that (1) he generally treats legislative history as only one factor among many when construing text, rather than as the sole basis for his interpretation; (2) he repeatedly notes that the statutory text, and not legislative history materials, is paramount in statutory interpretation; and (3) he has, in several cases, recognized the limitations of legislative history materials to interpret a statute. More generally, Judge Garland does not appear to have ever adopted an interpretation based on congressional purpose—as ascertained solely from legislative history materials—that was contrary to what he viewed as unambiguous statutory text to the contrary.

In both his penchant for finding statutory text ambiguous and his resort to legislative history materials in construing statutory text, Judge Garland's practices can be seen to diverge from those of former Justice Scalia. While Justice Scalia was a vocal supporter of the approach adopted by the Court in Chevron , he frequently found that statutory text was unambiguous and, thus, there was no need to consider the agency's interpretation of the text. Justice Scalia also opposed the consideration of legislative history materials, including their use to confirm text-based interpretations of statutory text. In this sense, Judge Garland would, if he were elevated to the Supreme Court, appear to approach matters of statutory interpretation somewhat differently from the man he would be succeeding, which could result in changes in the Court's rulings on close cases of statutory interpretation.

Administrative Law

A significant portion of the D.C. Circuit's docket consists of administrative law cases, in part, because Congress has vested the court with exclusive jurisdiction to hear challenges to a wide variety of government actions. Broadly speaking, at least two key legal doctrines might be said to inform administrative law cases. The first is whether a challenged agency action is suitable for judicial review in the first place, including whether a plaintiff has standing to sue to obtain judicial relief as a result of unauthorized agency conduct. The second is whether an agency's action comports with the law. An analysis of Judge Garland's opinions in administrative law cases that divided the D.C. Circuit reveals several trends that could provide insight into how he might approach these matters if he were confirmed to the Supreme Court.

Before considering the merits of a legal challenge to administrative action, a federal court often must assess whether judicial review is available and appropriate in the first place—an assessment that may be informed by constitutional, prudential, and statutory considerations affecting a petitioner's access to the courts. A court may be called upon to determine, for example, whether a petitioner has standing or is the appropriate party to bring a lawsuit challenging agency action; whether the petitioner has exhausted administrative remedies prior to seeking judicial review; whether the challenge concerns matters that are ripe for judicial consideration; or whether legal or factual developments have rendered the legal challenge moot.

While a judge's assessment of these issues often depends upon the particular facts of the case before the court, there are arguably some trends that can be identified in Judge Garland's jurisprudence. As an initial matter, Judge Garland has often sided with the majority on issues of judicial access that were litigated before the D.C. Circuit. In most decisions in which the appropriateness of judicial review of agency action was seriously contested, Judge Garland either wrote or joined the majority opinion of the court, or authored or joined a separate opinion that did not dispute the majority's ultimate conclusion regarding whether judicial access was available. Opinions authored by Judge Garland concerning petitioners' ability to seek review of administrative action tended to be written on behalf of unanimous circuit panels. In the majority of these cases, Judge Garland concluded that the challenge was nonjusticiable because the petitioner lacked standing; the asserted legal claim was unripe or moot; or some other issue made judicial review inappropriate.

On the other hand, in several cases, Judge Garland joined majority opinions where the court split on the question of whether a challenge to agency action was properly before it, and in those cases, he tended to be more permissive on matters of judicial access than his dissenting colleagues. In such instances, the judges who did not join the controlling opinion typically characterized the majority as having inappropriately allowed judicial recourse to a plaintiff who failed to satisfy the requirements necessary for judicial review of their claims.

To the extent that Judge Garland's rulings on the D.C. Circuit can be seen as taking a permissive approach on issues of justiciability, including whether a party has standing to challenge administrative action, it could signal a difference in approach from that taken by Justice Scalia, who authored a number of Court opinions that served to restrict access to the courts for persons seeking to challenge or compel administrative action. Because many recent Supreme Court rulings concerning standing and related matters have been closely divided cases, Judge Garland's confirmation to the High Court could play a role in relaxing justiciability requirements that are often the first hurdle to challenging agency action.

In considering Judge Garland's approach to whether agency actions comport with the law—a matter on which he wrote prior to becoming a federal judge —two important standards of review generally govern challenges to federal agency action under the APA and, thus, merit particular examination: statutory review, and arbitrary and capricious review.

Under the APA, a reviewing court must set aside agency action that is "not in accordance with law" or that is "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." When reviewing challenges to an agency's interpretation of a statute that it administers, courts grant deference to the agency's interpretation if Congress delegated to the agency authority to "speak with the force of law," and the relevant interpretation was "promulgated in the exercise of that authority." Pursuant to the framework established by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron) , a court evaluating a challenge to an agency's interpretation must, as a first step, determine whether the legislature "has directly spoken to the precise question at issue." If so, a court is required to give effect to Congress's intent, notwithstanding a contrary agency interpretation. However, if a statute is silent or ambiguous on the matter, the second step in the Chevron analysis requires a court to defer to a reasonable agency interpretation. Thus, a judicial finding of ambiguity is significant because it means that agencies are not foreclosed from altering their interpretations in the future in response to changed circumstances, whereas a finding that Congress clearly spoke to the issue "displaces a conflicting agency construction."

With regard to Judge Garland's approach toward review of an agency's interpretation of law under Chevron , in cases that divided the D.C. Circuit, Judge Garland often finds ambiguity in the underlying statute, leading him to evaluate an agency's regulation or rule through the more deferential lens of step two of the Chevron analysis. Judge Garland's dissenting opinion in Financial Planning Association v. SEC is indicative of his approach in such cases . At issue in that case was the Investment Advisers Act, which regulates the activity of "investment advisers," subject to six exceptions. One exception applies to "any broker or dealer whose performance of such services is solely incidental to the conduct of his business ... and who receives no special compensation therefor." Another exempts "such other persons not within the intent of this paragraph[], as the Commission may designate by rules and regulations or order." The SEC promulgated a rule under this second provision exempting broker-dealers who receive "special compensation therefor." The panel majority ruled that the SEC lacked authority to exempt broker-dealers beyond the scope of the first exemption, reasoning that because broker-dealers were addressed in the first exemption, they did not qualify as "other persons" for the purposes of the second exemption. Writing in dissent, Judge Garland argued that the terms of the second exemption were ambiguous and concluded that the agency interpretation was reasonable and entitled to Chevron deference. He argued that the majority's reasoning in finding the statute unambiguous apparently relied on the statutory canon of expressio unius —the concept that the mention of one thing excludes another—but that canon is, in Judge Garland's view, inappropriate in an administrative context where Congress has left an agency with discretion to interpret its statutory authority. And, for Judge Garland, the canon is particularly inapt where Congress expressly delegates authority to the agency to promulgate additional exceptions to a statute. Determining that the underlying statute in Financial Planning Association was ambiguous, Judge Garland would have moved to step two of the Chevron analysis and found that the agency's interpretation was reasonable, in part, because the agency's interpretation was intended to serve the purposes of the statute for a group that did not exist when the statute was enacted in 1940.

In divided cases where Judge Garland has ruled against an agency's interpretation of a federal statute, he has appeared to favor outcomes that could leave room for the agency to adopt more formal interpretations in the future that, if enacted, would allow the agency's legal position to eventually prevail. In other words, when voting against an agency's interpretation of the law, Judge Garland has often found that the Chevron doctrine did not apply because the agency has not spoken with the force of law. Because a finding that a statute is unambiguous effectively eliminates an agency's discretion to adopt a contrary interpretation in the future, his conclusion that Chevron was inapplicable in a particular case left open the possibility that the agency could later reinterpret the statute through a different procedure that could qualify for Chevron deference. For example, in Sottera, Inc. v. Food & Drug Administration (FDA), Judge Garland rejected the majority's view that Supreme Court precedent foreclosed the FDA from regulating e-cigarettes under the Federal Food, Drug and Cosmetic Act (FFDCA), and instead concurred in the court's judgment on the basis that the FDA had merely failed to put forth "an authoritative agency interpretation" of the FFDCA warranting Chevron deference. In so doing, Judge Garland argued that the agency could in the future submit a formal regulation interpreting its authority to regulate e-cigarettes under the FFDCA, which would warrant more deference from the judiciary. In this vein, even in cases where Judge Garland has rejected an agency's interpretation of a statute, the rationale for his vote typically has not wholly foreclosed agency discretion on the underlying legal issue.

In addition to statutory review cases, the other major basis for challenges to agency actions under the APA is Section 706(2)(A) of the act, which authorizes reviewing courts to "hold unlawful and set aside agency actions, findings, and conclusions found to be arbitrary, capricious, [or] an abuse of discretion...." The Supreme Court has viewed this provision as requiring agencies to "examine the relevant data and articulate a satisfactory explanation for [their] action including a 'rational connection between the facts found and the choice made.'" "In reviewing that explanation, [the court] must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Generally, arbitrary and capricious review is "highly deferential" to the agency, as "a court is not to substitute its judgment for that of the agency."

Judge Garland's record in applying the APA's arbitrary and capricious standard of review appears more mixed relative to his jurisprudence in statutory review cases. The arbitrary-and-capricious-review cases where Judge Garland has deferred to an agency's decisionmaking under the standard set forth in Section 706(2)(A) of the APA have tended to involve challenges to agency action on highly technical matters, particularly in environmental law. Judge Garland's views in such cases may have been motivated by a reluctance for courts to second-guess the expert views of agencies that have been charged by Congress with administering a statute. For example, in Americans for Safe Access v. Drug Enforcement Administration (DEA) , he voted with the majority to uphold the DEA's decision not to initiate procedures to reclassify marijuana to a less restrictive schedule under the Controlled Substances Act. The plaintiffs in that case challenged the DEA's conclusion that marijuana lacked a "currently accepted medical use," in part because there were not "adequate and well-controlled studies" proving marijuana's medical efficacy. In oral arguments in that case, with regard to the agency's conclusion that such studies did not exist, Judge Garland asked: "Don't we have to defer to the agency ... we're not scientists, they are." These comments perhaps demonstrate a view that administrative agencies are better equipped to make such decisions than the courts. Likewise, in an analogous but distinct context from arbitrary and capricious review, in the case of In re Aiken County , Judge Garland dissented from the panel majority's decision issuing a writ of mandamus ordering the Nuclear Regulatory Commission (NRC) to resume the processing of a Department of Energy (DOE) application for a license to store nuclear waste at Yucca Mountain in Nevada. Judge Garland's dissent argued that the majority opinion functionally ordered an agency to "do a useless thing," as the NRC had stopped the application proceeding because it did not have sufficient appropriated funds to complete the project, and Congress had, at the agency's request, appropriated only enough money to shut down the agency's licensing activity. For Judge Garland, the agency simply lacked the funds to complete the application process, and the court was inappropriately questioning the agency's view that it simply could not "make any meaningful progress" with the funds it currently possessed.

In other cases, however, Judge Garland has voted to invalidate agency actions or remand cases to the agency for a more developed explanation of its policy choice. For instance, in Alpharma, Inc. v. Leavitt , Judge Garland wrote for the majority in remanding a matter to the FDA so that the agency could provide a fuller explanation of its reasoning in making the decision to approve a new animal drug application. In particular, Judge Garland's majority opinion found that the agency's response to a previous remand order by the D.C. Circuit raised new concerns, as the FDA made, in the majority's view, contradictory assertions that prevented the court from concluding that the agency's decision was reasonable. Nonetheless, while Alpharma demonstrates that Judge Garland has at times exhibited skepticism in reviewing agency action in the context of arbitrary and capricious review, no discernible trend appears in such cases akin to how he approaches the review of agency interpretations of statutes.

To the extent that Judge Garland's approach to administrative law would afford agencies flexibility in interpreting statutes that are found to be ambiguous, his approach arguably contrasts with that of Justice Scalia, who readily acknowledged that his textualist approach to statutory interpretation made it less likely that the "triggering requirement for Chevron deference" would be found. In this sense, Judge Garland's confirmation to the Supreme Court could result in significant changes to the Court's approach to the jurisprudence on administrative law.

Capital Punishment

Judge Garland's views on capital punishment may be particularly important insofar as he would, if confirmed, be replacing Justice Scalia, who believed the death penalty was fully consistent with the Eighth Amendment, and two Justices currently on the Court openly have argued that the practice is unconstitutional. However, Judge Garland does not appear to have had occasion to address directly the subject of capital punishment during his tenure on the D.C. Circuit since the District of Columbia does not provide for the imposition of the death penalty, and federal death penalty cases are not confined to the D.C. Circuit, as certain administrative law and environmental law cases are. Prior to his appointment to the D.C. Circuit, Judge Garland was a prosecutor and handled cases wherein the government sought the death penalty, most notably against Oklahoma City bomber Timothy McVeigh. In addition, Judge Garland also stated, in response to questioning at the 1995 hearing on his original nomination to the D.C. Circuit, that "as a personal matter," he viewed capital punishment as "settled law now. The Court has held that capital punishment is constitutional and lower courts are to follow that rule." Based on only these isolated statements, with no judicial record interpreting the Eighth Amendment generally or the death penalty specifically, it is difficult to make any firm predictions about how Judge Garland might vote were he appointed to the High Court.

Civil Liability

One major area where Judge Garland could be quite influential, if he were to be confirmed to the Supreme Court, involves the limits that federal law imposes procedurally and substantively on civil defendants' exposure to monetary liability, particularly in the context of lawsuits resulting from allegedly faulty products, discriminatory practices, or fraudulent activities. This is because Justice Scalia, whom Judge Garland could succeed on the Supreme Court, cast critical votes in several closely contested cases that read federal law relatively expansively to restrict plaintiffs' ability both to use (1) procedural vehicles, such as class action litigation, to facilitate civil recoveries, and (2) substantive state law, including common law tort actions, to sue businesses that may have harmed them. In other cases, Justice Scalia cast important votes more narrowly interpreting the scope of federal law to limit corporate defendants' potential civil liability. Given Justice Scalia's decisions, commentators have debated how Judge Garland might affect the Roberts Court's perceived "warmth" toward businesses on civil liability matters if he were to be confirmed to the Court. Some have suggested that the nominee's tendency to defer to executive agencies could make him less apt to use judicial power to interfere with marketplace externalities, while others contend that Judge Garland's record, particularly on labor law matters, would make him more hostile toward business interests and more likely to side with the plaintiffs' bar in interpreting federal law.

While certain predictions could perhaps be made with regard to how Judge Garland might rule on civil liability matters based on his votes in other areas of law, like labor law, the docket of the D.C. Circuit—which tends to have a considerable number of administrative law disputes and relatively "few explicit business cases" —makes it difficult to predict confidently how he might rule if he were to be elevated to the High Court. Indeed, there are very few cases in which he has ruled directly on matters of civil liability akin to those matters on which Justice Scalia was so influential. Moreover, many of the rulings that Judge Garland has made on civil liability matters have been unanimous ones, joined by judges of differing philosophies and backgrounds, which presumably signals that precedent was seen to have largely dictated the result in such cases. For example, Judge Garland joined majority decisions twice in 2013 that took the relatively unusual step of vacating class action certifications on interlocutory appeal, "command[ing]," in one case, a lower court to take a "hard look at the soundness of [the] statistical models" that formed the basis for class certification. Nonetheless, a year later, Judge Garland joined a majority decision written by Judge Douglas Ginsburg that denied a petition to vacate a class certification order despite the existence of "unsettled questions of law relating to class actions at issue in this case." As a consequence, on many civil liability matters, like the scope of the rules governing class action certifications, Judge Garland has arguably not exhibited any clear tendencies or preferences.

Nonetheless, at least a few of Judge Garland's cases stand out with regard to general civil liability matters, and may provide some insight into how he might rule on such issues. With respect to the interpretation of federal law in displacing state causes of action, such as tort law—an issue of considerable dispute on the High Court in recent years —Judge Garland notably dissented in Saleh v. Titan Corp . The Saleh case arose from the abuse of detainees who were imprisoned at the Abu Ghraib detention facility during Operation Iraqi Freedom. The plaintiffs, Iraqi nationals, sued the military contractors that had provided interrogation and translation services at the prison, claiming that the defendant contractors were liable for assault, battery, wrongful death, and intentional infliction of emotional distress. In response, the defendants argued that these common law tort claims were preempted by the Federal Tort Claims Act (FTCA), a law that has a limited waiver of sovereign immunity, but exempts from that waiver the discretionary functions of federal officials and the combatant activities of the military. Because federal contractors are expressly excluded from coverage under the FTCA, the defendants in Saleh based their preemption argument on an extension of the Supreme Court's 1988 decision in Boyle v. United Technologies Corp. , which established a potential defense for federal contractors facing liability under state tort law if a state tort claim raises a "significant conflict" with the requirements of a federal government contract.

In Saleh , Judge Garland and the majority disagreed on whether a sufficiently "significant conflict" existed given the facts before them. Looking to the FTCA's preservation of sovereign immunity with respect to "[a]ny claim arising out of the combatant activities of the military," the majority held that the purpose of this exception is the "elimination of tort from the battlefield" in order to "free military commanders from the doubts and uncertainty" that accompany potential civil liability. Judge Garland, in contrast, found that the duties imposed by tort law and the contract in the case were "congruent rather than incompatible," largely because the allegedly unlawful conduct of the defendants had not been "directed or authorized" by military personnel. Judge Garland also argued that what he viewed as the "extraordinarily broad" preemption under the majority's interpretation was incompatible with the presumption that state causes of action should be left intact absent a "clear and manifest" congressional purpose to displace state law, a rule of construction that Justice Scalia repeatedly criticized. In this regard, although Saleh addressed preemption within the narrow context of suits against federal contractors, it may exemplify the general approach that Judge Garland could employ when analyzing whether and to what degree federal and state law conflict, as well as illustrate how Judge Garland might approach such matters differently from Justice Scalia. Because the conflict required in Saleh —which dealt with "uniquely federal interests"—is less than that which would be required in ordinary preemption cases, it would be reasonable to presume that Judge Garland would similarly disfavor broad displacement of state claims "when Congress legislates in a field which the States have traditionally occupied." More broadly, Judge Garland's views on preemption, as discussed in Saleh , may be part and parcel of his writings prior to joining the D.C. Circuit, where he expressed deep skepticism with respect to federal courts broadly invalidating state laws under preemption principles in the context of federal antitrust law.

In a related but distinct context, Judge Garland has tended, particularly in nonunanimous opinions, to read federal laws that impose civil liability more expansively than some of his colleagues on the D.C. Circuit. For example, in a decision ultimately reversed by the Supreme Court, a majority of the en banc D.C. Circuit held in Kolstad v. American Dental Association that Congress's authorization of punitive damages for sex discrimination claims brought under Title VII of the Civil Rights Act of 1964 should be interpreted in the context of the common law. Because punitive damages at common law require that the defendant's conduct be "egregious," the majority held that the same standard should apply under Title VII, even though the text of the statute appeared to require only malice or reckless indifference. Judge Garland, however, joined the dissent in Kolstad , which argued that the plain language of the statute should control, and that adding the common law requirement of "egregious" conduct was inappropriate. Moreover, in interpreting the False Claims Act, a law that imposes certain penalties upon any person who "knowingly presents, or causes to be presented, to an officer or employee of the United States Government ... a false or fraudulent claim for payment or approval," Judge Garland wrote two opinions that tend to favor plaintiffs that prompted disagreement with some of his colleagues on the D.C. Circuit. First, in United States ex rel. Yesudian v. Howard University, Judge Garland, over the dissent of Judge Karen Henderson, wrote a majority opinion reversing the dismissal of claims that a university employee was discharged in retaliation for whistleblowing activity under the FCA. In so doing, the majority held that to prove retaliation for purposes of the FCA, a plaintiff need not demonstrate that the defendant knows or is advised that the underlying fraud of which the whistleblower complains would necessarily violate the act. Six years later, in United States ex rel. Totten v. Bombardier Corp. , Judge Garland dissented from a majority opinion by then Judge John Roberts in another FCA matter. There, the majority held that a manufacturer could not, under the version of the FCA then in effect, be held liable for false claims allegedly submitted to a private entity even though the claims were paid for largely with federal funds. However, in dissent, Judge Garland argued that the majority decision unnecessarily "immunizes those who defraud" government-funded private organizations from FCA liability, leaving "vast sums of federal monies" unprotected by the act. Nonetheless, while these cases provide some insight into how Judge Garland might vote in future cases where the Court addresses the scope of liability for civil defendants, the small number of D.C. Circuit cases on business law and general civil liability issues make it difficult to predict confidently how Judge Garland would rule on such matters if confirmed to the High Court.

Civil Rights

Civil rights are another prominent legal issue frequently raised in cases before the Court. Justice Scalia's views regarding the scope of constitutional and statutory civil rights protections were established in a number of judicial opinions, and he participated in several cases—including on gay rights and affirmative action—that were closely divided. His eventual replacement could affect how the Court addresses such issues. However, unlike Justice Scalia, Judge Garland's views on constitutional civil rights questions are generally unknown because he has not had occasion to address such questions directly in the cases before the D.C. Circuit. Rather, most of the civil rights decisions in which Judge Garland has participated during his tenure on the appellate court appear to have centered on statutory civil rights claims and, in particular, statutory employment discrimination claims.

The most notable of Judge Garland's statutory civil rights cases is arguably Kolstad v. American Dental Association , an en banc decision that eventually made its way to the Supreme Court. In Kolstad , a majority of the en banc D.C. Circuit upheld the dismissal of a claim for punitive damages filed under Title VII of the Civil Rights Act of 1964, on the grounds that such damages are available only when an employer engages in egregious misconduct, which the court viewed as lacking in this case. Judge Garland, however, joined the dissenting opinion, authored by Judge David Tatel, which argued that punitive damages should be available in intentional discrimination cases if the plaintiff can show reckless indifference by an employer. The Supreme Court subsequently adopted a view closer to that of the dissent than the majority on this question, concluding that while the statute imposes a separate, higher standard for awarding punitive relief in cases of intentional discrimination, there need not be a certain level of egregiousness for awarding such relief. Instead, the Court held that under the Title VII, "an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law to be liable in punitive damages." Some commentators have noted that Judge Garland's vote in in Kolstad , as well as his opinions or votes in certain other statutory civil rights cases, have frequently, though not always, tended to result in outcomes that favor employees, rather than employers. However, the outcomes in these cases may reflect Judge Garland's general approach to questions of statutory interpretation or administrative law, rather than "pro-employee" sentiments per se. Moreover, even if Judge Garland's statutory civil rights jurisprudence were seen to favor plaintiffs generally, it remains unclear how he might rule on constitutional civil rights questions, given his lack of votes in cases involving such questions while on the D.C. Circuit.

Criminal Law and Procedure

Judge Garland's opinions in the field of criminal law and procedure constitute another noteworthy segment of his overall jurisprudence, especially given that he would, if confirmed, replace Justice Scalia, who can be seen to have been generally, although not universally, solicitous of the rights of criminal defendants when construing the Constitution and criminal statutes. Criminal law and procedure is an area of law with which Judge Garland was well familiar by the time of his appointment to the federal judiciary in 1997; in the years immediately preceding his appointment to the D.C. Circuit, he served as a federal prosecutor for the DOJ, overseeing the investigation of several prominent cases, including those involving the Unabomber, the 1995 Oklahoma City bombing, and the 1996 Atlanta Olympics attack. Perhaps because of his background prosecuting major criminal cases on behalf of the federal government, several commentators have suggested that Judge Garland would, if elevated to the Supreme Court, tend to side with the government's interests in criminal cases. Such suggestions have been supported by examinations of Judge Garland's votes in criminal law matters while on the D.C. Circuit, which show that the nominee tends to vote in favor of the government. Putting to the side questions about the value of such bottom-line assessments of Judge Garland's entire jurisprudence on criminal law —an area of law where the federal appellate judiciary, as a whole, sides with the government a substantial percentage of the time —an examination of how he resolved issues in a host of criminal law cases, particularly cases that divided the court, may provide a more nuanced and perhaps more insightful approach to predicting how the Supreme Court's criminal jurisprudence may change if Judge Garland succeeds Justice Scalia.

With respect to constitutionally based criminal procedure rules, Judge Garland, when siding with the government's position, has tended to afford deference to law enforcement officers' reactions in the field, with an eye toward protecting officers' safety. For example, over the dissent of Judge Judith Rogers, he ruled for the government in United States v. Brown , a fact-intensive case that evaluated whether a police officer, investigating reports of a shooting outside an apartment building, violated the Fourth Amendment when he opened the door of a car in a parking lot outside of the apartment and subsequently searched the car's trunk. Applying the totality of the circumstances approach set forth by the Supreme Court in Terry v. Ohio , Judge Garland concluded that the officer's belief that the occupants posed a danger to his safety was justified, given that (1) the search occurred in a high crime area and was conducted at night; (2) one of the vehicle's occupants exited the car prior to the search and appeared to be "eyeing" the police; and (3) another of the vehicle's occupants jumped into the front seat when the officer approached. Unlike Judge Rogers, Judge Garland emphasized that an objective assessment of reasonable suspicion, as opposed to a subjective inquiry into a law enforcement officer's particularized motive for a search, must govern Terry inquiries, a view he based on a 1996 opinion by Justice Scalia that some commentators have suggested affords law enforcement considerable discretion. Similarly, in United States v. Christian , Judge Garland, in holding that a police officer's search of a defendant's car that was near the defendant at the time of his arrest was permissible as part of a weapons search under Terry and its progeny, rejected the argument that the police officer did not truly fear for his safety because he searched the defendant's car before frisking the defendant's body. In so doing, Judge Garland, echoing themes from Brown , noted that "appellant judges do not second-guess a street officer's assessment about the order in which he should secure potential threats," but rather evaluate the officer's "conduct objectively, not subjectively."

At the same time, Judge Garland's constitutionally based criminal procedure rulings, perhaps in keeping with his broader judicial tendencies, have tended to be narrow in their scope and limited to the specific facts of the case at hand. For example, in United States v. Powell , Judge Garland sided with the majority in an en banc ruling upholding a search incident to arrest—a recognized exception to the Fourth Amendment warrant requirement —that occurred before the suspect was formally or constructively placed under arrest. The dissent in Powell disagreed, arguing that the mere possibility of arrest is insufficient to justify a warrantless search incident to arrest, given a 1998 Supreme Court ruling that held that the search incident to arrest doctrine is inapplicable when the suspect is merely given a citation. However, the majority concluded otherwise, finding that the search fell within the confines of earlier case law allowing an officer to conduct a warrantless search if the "formal arrest follow[s] quickly on the heels of the challenged search." Judge Garland's vote with the majority in Powell could be seen to indicate a hesitancy to read later-in-time precedent broadly to overturn implicitly controlling case law.

In another en banc ruling, United States v. Askew , Judge Garland similarly showcased his penchant for relatively narrow rulings on constitutional criminal matters. In Askew , the D.C. Circuit divided on the question of whether the police may—without a warrant—unzip a suspect's outer jacket to facilitate a witness's identification during a Terry stop, with five judges concluding that, as a matter of law, the police could not do so, and four judges concluding that they could. Two judges in Askew prevented either legal conclusion from gaining a majority of the 11-person en banc court needed to create circuit precedent; however, Judge Garland, along with Judge Douglas Ginsburg, joined only a narrow section of the eventual majority opinion that avoided the broader legal question, instead holding that based on the facts in the record, the police had no reasonable basis for believing that viewing the "generic blue sweatshirt" worn by the defendant underneath his jacket would establish or negate his connection with the underlying crime. In this sense, as noted by the dissent in Askew , Judge Garland's vote was the "narrowest ground necessary for reversing" the underlying conviction, suggesting the nominee's hesitancy regarding broader rulings in constitutional criminal law matters.

Beyond the context of the Fourth Amendment, Judge Garland has often ruled on narrow grounds when filling gaps left open by the Supreme Court's or D.C. Circuit's case law. For example, when authoring an opinion involving an issue of first impression in the D.C. Circuit concerning the "actual innocence" standard in federal habeas corpus cases, Judge Garland, after reviewing Supreme Court precedent, cautioned that "we should hesitate before adding a condition [of proof] not included in the express language of the Supreme Court's opinion." Similarly, in United States v. Andrews , when deciding whether to adopt a new rule for the court as to whether the application of a Federal Sentencing Guidelines recommendation issued after the date of the offense, which would have yielded a higher sentence, raised ex post facto issues—something that had divided the appellate courts before the Supreme Court's decision in Peugh v. United States —Judge Garland concluded that the D.C. Circuit need not choose which side of the debate to join because, under plain error review, "there is no plain error unless the district court failed to follow an absolutely clear legal norm." In addition, when opining on the novel issue of "how to treat an unobjected-to Booker error when the original sentencing judge is no longer available to preside over remand," Judge Garland declined to grant the government's request to create a new rule granting a limited remand before a new district judge to determine whether the original sentencing judge would have imposed the same sentence had he known the Sentencing Guidelines were advisory rather than mandatory. Instead, Judge Garland concluded that a plenary sentencing hearing was warranted because "district courts—no matter how collegial they may be—do not have a collective consciousness, one judge's conclusion as to what another would have done in a circumstance the latter never contemplated would truly be a legal fiction."

With regard to statutory interpretation of criminal laws, Judge Garland has in divided cases tended to read criminal statutes more broadly than some of his colleagues on the D.C. Circuit to encompass the activities of charged defendants. For example, he sided with the government's position in several cases concerning whether a mens rea (i.e., mental state) element is required by a statute. In United States v. Burwell , Judge Garland joined the majority en banc opinion holding that the government need not prove that the defendant knew the firearm he carried was capable of firing automatically in a prosecution under Section 924(c)(1)(B)(iii) of Title 18 of the U.S. Code , a result the majority concluded was in line with statute's purpose of deterring future "offenders more generally through the imposition of a particularly severe penalty" with respect to the use of a machine gun in a federal felony. Judges Rogers, Kavanaugh, and David Tatel, however, dissented, arguing that the presumption that a mens rea element applies to every element of a criminal offense should apply to Section 924(c). Similarly, in United States v. Blalock , Judge Garland authored an opinion holding that the fact the defendant was high on phencyclidine (PCP) did not negate the mens rea element in the statute, as there were attendant circumstances demonstrating that the defendant was sufficiently in control of his faculties to meet the mens rea requirement. Nonetheless, Judge Garland has not uniformly sided with the government in mens rea cases, as he authored the majority opinion in United States v. Project on Government Oversight . In that case, the court held a federal statute, which bars nongovernmental persons from compensating federal employees for performing government services, requires proof that the money was given with the intent to compensate the employee for government services.

Outside of statutory interpretation cases concerning mens rea requirements, in one notable en banc case, Valdes v. United States , Judge Garland, in dissent, supported a fairly broad reading of a federal criminal law, arguing that the federal antigratuity statute encompassed the actions of a police officer who agreed to use police databases to find contact information for certain individuals in exchange for money. While the majority in Valdes interpreted the term "official act" in the relevant federal statute as including only those acts that are formally before a government agency, or responses to questions that the agency had authority to answer, Judge Garland argued that the majority's narrow construction of the term "official act" would not only limit prosecutions under this statute, but "would [also] strike at the core of bribery prosecutions under [another statute]," which relies on the same definition of "official act." He cautioned that, under the majority's approach, "successful bribery prosecutions under [this other statute] ... would not be possible." Judge Garland's dissent here could be seen as evidencing an inclination to give broad effect to criminal statutes, especially those aimed at public corruption. If so, such an approach would mark a departure from Justice Scalia's often more favorable approach toward criminal defendants, which relied on the rule of lenity (i.e., the idea that persons must have sufficient notice of a law before they can be found in violation of it).

Whether opinions like Valdes speak to a broader tendency of Judge Garland to favor the government systematically in criminal law matters, as has been suggested by some commentators, remains to be seen, however. It is important to note that many aspects of criminal law and procedure upon which Justice Scalia deeply influenced the Court's jurisprudence —including the scope of Fifth Amendment's double jeopardy and self-incrimination prohibitions and the Sixth Amendment's Confrontation and Jury Clauses—have simply not been addressed by Judge Garland in any manner that would meaningfully reveal how he would approach such issues if he were to be confirmed to the Supreme Court. More broadly, while nearly two decades' worth of decisions in appeals on criminal law matters provides a large number of cases to examine in order to gauge Judge Garland's approach, the vast majority of these decisions have involved relatively straightforward applications of Supreme Court or circuit precedent, or adherence to the uniform approaches of sister circuits. This means that any absolute pronouncements about how Judge Garland would approach criminal law, if he were appointed to a position where he would not necessarily be constrained by precedent or the views of other judges, should be viewed with some skepticism.

Environmental Law

The D.C. Circuit hears a large number of environmental law cases, in part because several major environmental statutes require challenges to certain types of agency actions to be brought exclusively in that court. As a consequence, Judge Garland has participated in dozens of environmental cases in his time on the D.C. Circuit. Many environmental cases raise common issues of administrative law, such as standing to sue and standards for judicial review. However, environmental law statutes and cases can also raise their own unique issues. Where a number of observers have suggested that Justice Scalia evidenced a certain degree of skepticism toward arguments emphasizing environmental values, Judge Garland generally has been viewed as more receptive to such arguments, even though he has not always ruled in favor of environmental protections.

Judge Garland has often applied Chevron deference in support of upholding agency interpretations of environmental statutes. Indeed, some have singled out what they see as his "long-standing commitment to Chevron deference" as a defining characteristic of his environmental jurisprudence. For example, in the 2002 case American Corn Growers Association v. Environmental Protection Agency (EPA) , which involved review of the EPA's Regional Haze Rule, Judge Garland's partial dissent supported the position put forth by the agency. He wrote that, unlike the other two judges on the panel, who agreed with industry petitioners that language in the Clean Air Act (CAA) required each pollution source's control requirements to be based on assessments of that source's impact on haze, he would have deferred to the EPA's interpretation that the act allowed the agency to base controls on collective assessments of groups of sources. Judge Garland was also in the majority of a divided panel that deferred to the EPA's interpretation of the phrase "appropriate and necessary" in a CAA provision on regulating hazardous emissions from power plants, and upheld the EPA's Mercury and Air Toxics (MATS) rule, a holding that was overturned by the Supreme Court, by a vote of 5-4, in its 2015 decision in Michigan v. EPA . Judge Garland has joined opinions applying Chevron deference to uphold agency interpretations against challenges from environmental groups as well. However, where he has voted to vacate or remand environmental rules on Chevron grounds, he has more often, but not exclusively, done so in response to challenges from environmental groups rather than industry.

Judge Garland's application of the "arbitrary and capricious" standard for judicial review of agency actions found in the APA and in environmental statutes such as the CAA further illustrates his tendency to defer to agencies, especially on highly technical environmental matters. For example, in National Association of Home Builders v. EPA , he wrote an opinion for the court that included a fairly in-depth review of the EPA's explanation and cost-benefit calculations, upholding a 2010 agency amendment that removed an "opt-out" provision from a Toxic Substances Control Act regulation on renovation and remodeling hazards from lead paint. On the other hand, Judge Garland has ruled against agency actions on the facts of some cases. In a per curiam decision in American Farm Bureau Federation v. EPA , for example, a panel including Judge Garland agreed with state and environmental petitioners that the EPA's 2006 CAA standard for fine particulate matter was "unsupported by adequately reasoned decisionmaking," and remanded the rule to the EPA for "further consideration of whether it is set at a level requisite to protect the public health while providing an adequate margin of safety from the risk of short-term exposure...."

The National Environmental Policy Act (NEPA), which imposes procedural requirements on agencies to take a "hard look" at environmental consequences, has been a statutory vehicle for many challenges to agency actions and project approvals. It appears that where he has reached the merits of NEPA claims, Judge Garland has tended to uphold agencies' NEPA decisions unless they failed entirely to take a required step. In Sierra Club v. Van Antwerp , he joined an opinion holding that when the Army Corps of Engineers issued a permit authorizing the discharge of dredge and fill material into specified wetlands for construction of a mall, the Corps "did not address the impacts of habitat fragmentation" on the endangered eastern indigo snake, and "the Corps must make some determination on the issue" under NEPA and the Endangered Species Act (ESA).

In the environmental context, Judge Garland has required agencies to adhere to other statutory procedural requirements as well. For example, in Gerber v. Norton , he authored an opinion agreeing with a plaintiff environmental group that the Fish and Wildlife Service (FWS) had violated the rather rigorous procedural requirements of the ESA by, among other errors, failing to make a site map available during the comment period. Other cases, though, appear to demonstrate more willingness to allow environmental agencies some procedural flexibility. Thus, in In re Aiken County , Judge Garland dissented from an opinion requiring the NRC to proceed to exhaust its previous appropriations to continue the Yucca Mountain licensing process. The applicable statute provides that the NRC "shall issue a final decision approving or disapproving" the application filed by the Department of Energy, and the majority in In re Aiken County stated that "where previously appropriated money is available for an agency to perform a statutorily mandated activity, we see no basis for a court to excuse the agency from that statutory mandate," even where all agreed it was impossible for the agency to complete the licensing. Judge Garland, in contrast, looked to the court's "discretion not to order the doing of," what he viewed to be, "a useless act."

Access to courts has been another theme of recurring importance in environmental cases. One jurisdictional threshold that plaintiffs in federal courts must cross is establishing standing to sue under Article III of the Constitution. In cases challenging federal agencies' environmental decisions, Judge Garland has been mindful of the constitutional requirements and prudential concerns of standing doctrines; he has authored and joined a number of opinions rejecting standing for environmental or industry plaintiffs or petitioners. However, he also has found standing in a number of cases, including some in which other judges did not. In addition to standing, would-be plaintiffs seeking to bring lawsuits or petitions raising environmental issues may also have to satisfy legal requirements relating to ripeness, the finality or binding nature of the agency action challenged, and their exhaustion of administrative remedies. As with standing, in some cases Judge Garland has found causes of action ripe or otherwise appropriate to hear, even where other judges have disagreed. However, some practitioners have noted that he has fairly often written or joined opinions that applied these doctrines to bar challenges to agency environmental decisions before reaching the merits. In one notable example, in the 2014 case Utility Air Regulatory Group (UARG) v. EPA , Judge Garland wrote on exhaustion of administrative remedies that "the only objections that may immediately be raised upon judicial review are those that were raised during the public comment period. Objections raised for the first time in a petition for reconsideration must await EPA's action on that petition." Judge Garland also has joined opinions holding NEPA claims, in particular, to be premature or improper on several occasions.

Finally, environmental cases may also implicate other constitutional issues. Judge Garland generally has not favored constitutional arguments against environmental regulations. In American Trucking Associations v. EPA , a D.C. Circuit panel that did not include him held, among other things, that a section of the CAA unconstitutionally delegated legislative power to the EPA on the grounds that the agency had interpreted the statute in a manner that provided no "intelligible principle" to guide the agency's exercise of authority. Judge Garland dissented from the denial of rehearing en banc and joined a statement of dissent emphasizing Supreme Court precedent on Congress's need to be able to delegate power to agencies "under broad general directives." The panel's decision on the nondelegation issue was unanimously overturned by the Supreme Court in 2001 in Whitman v. American Trucking Associations , in a decision written by Justice Scalia. Judge Garland similarly rejected a constitutional challenge to environmental protections in the 2003 case Rancho Viejo, LLC v. Norton , in which he wrote the opinion for the court finding that an agency's ESA determination—that a planned housing development was likely to jeopardize the continued existence of the arroyo southwestern toad—was a constitutional exercise of federal authority under the Commerce Clause. More recently, Judge Garland joined the opinion in Mississippi Commission on Environmental Quality v. EPA , which rejected arguments that the EPA's designation of areas in Texas and elsewhere as "nonattainment" areas under the CAA exceeded federal authority under the Commerce Clause, the Due Process Clause, Spending Clause, and the Tenth Amendment.

Overall, it appears that agencies defending environmental rules could find their odds somewhat more favorable in many cases if Judge Garland were to be confirmed to replace Justice Scalia on the Supreme Court. Any such shift could be key to the outcome of major environmental law challenges that could eventually reach the Supreme Court after working their way through lower courts at the time of Judge Garland's nomination. Perhaps most notable among these are the consolidated challenges to the EPA's Clean Power Plan rule, which was stayed by Justice Scalia in one of his last votes for the Court and which is considered highly likely to be appealed to the Supreme Court by whichever side does not prevail before the current D.C. Circuit panel (this panel does not include Judge Garland).

Federalism

During his tenure on the D.C. Circuit, Judge Garland has addressed issues of federalism and the scope of congressional power vis-à-vis the states in only a limited number of cases. Issues raised by these cases include the constraints imposed upon Congress's legislative power by the anticommandeering principles of the Tenth Amendment; the extent of the anticoercion principles undergirding the Supreme Court's jurisprudence on the Spending Clause; the scope of the Commerce Clause; and the limits upon states' ability to invoke Eleventh Amendment immunity. Gleaning general trends from these few decisions is difficult, as it is unclear to what degree Judge Garland's conclusions may reflect his own approach to federalism questions, or what he perceives as adherence to Supreme Court precedent. However, it appears that in federalism cases in which there was some disagreement among the reviewing circuit judges, Judge Garland has tended to side with the federal government and narrowly construe judicial limits on Congress's power to act in a manner that could implicate the sovereign interests of the states.

In his judicial opinions, Judge Garland has had limited opportunity to assess the scope of the anticommandeering doctrine recognized by the Supreme Court. This doctrine posits that the Tenth Amendment prohibits Congress from "commandeering" states by compelling them to adopt laws or enforce federal regulatory schemes, by reserving to the states all powers not delegated to the federal government by the Constitution. In the one case before Judge Garland where an anticommandeering argument was raised, the precise issue appears to have been squarely resolved by Supreme Court precedent on conditional preemption. In that case, Judge Garland joined a per curiam opinion in Mississippi Commission on Environmental Equality v. EPA that rejected the argument that the CAA commandeers state officials by compelling them to enforce federal environmental requirements, on the grounds that the Supreme Court had "repeatedly affirmed the constitutionality of federal statutes that allow States to administer federal programs but provide for direct federal administration if a State chooses not to administer [the program]."

Arguably more telling, however, are the cases where Judge Garland has adjudicated claims concerning the constraints the Tenth Amendment may impose upon the exercise of Congress's power under the Spending Clause. For example, the Mississippi Commission court, having rejected plaintiffs' commandeering argument, likewise dismissed an argument that the CAA constitutes an impermissible and coercive use of Congress's spending powers insofar as it permits the EPA to withdraw funding for transportation projects in areas determined not to have met federal air quality standards. In so doing, the court examined the principle established by the Supreme Court in South Dakota v. Dole , and more recently refined in National Federation of Independent Business (NFIB) v. Sebelius , that when the "financial inducement offered by Congress [is] 'so coercive as to pass the point at which pressure turns into compulsion,'" the spending condition "runs contrary to our system of federalism." Adopting an arguably narrower interpretation of NFIB , the D.C. Circuit panel in Mississippi Commission distinguished the CAA provision in question from the provisions of the Affordable Care Act (ACA) at issue in NFIB. In particular, the court reasoned that, whereas the ACA called for the entirety of a state's Medicaid funding to be withheld if the state failed to meet expanded health insurance coverage requirements, under the CAA, a state would not lose all its federal transportation funding, but a lower amount, which did "not even approach the 'over 10 percent of a State's overall budget' at issue in NFIB ." Moreover, the per curiam opinion openly questioned in dicta whether a state could even challenge a spending condition as "unconstitutionally coercive" if it had "long accepted billions of dollars notwithstanding the challenged conditions," a possible limitation on state challenges to federal funding conditions not addressed by the Supreme Court in Dole and subsequent cases.

In a slightly different context, Judge Garland more narrowly interpreted the Dole restrictions on the spending power in Barbour v. WMATA , affirming Congress's authority to condition federal transportation funding on a waiver of state sovereign immunity. Barbour centered on a Spending Clause argument divorced from the issue considered by the Supreme Court in NFIB . Namely, the state defendants in Barbour —Maryland and Virginia—argued that Congress, in conditioning acceptance of federal transportation funds on a state's agreement to waive sovereign immunity with regard to disability discrimination lawsuits lodged by state employees, had exceeded its powers under the Spending Clause by conditioning the monetary grants to the states on something "unrelated to the federal interest in transportation funds." In an opinion joined by D.C. Circuit Judge and future Supreme Court Chief Justice John Roberts, Judge Garland concluded that Dole' s requirement that the conditions relate to the purpose of the funding was satisfied because Congress "did not want any federal funds to be used to facilitate disability discrimination, and ... exposing recipient entities to the threat of a federal damages action was an effective deterrent." Unlike Judge David Sentelle's dissent, Judge Garland's majority opinion in Barbour , relying on Supreme Court precedent regarding spending conditions that imposed restrictions on racial discrimination by state governments, gave considerable deference to Congress's judgment that a waiver of sovereign immunity was appropriate to protect federal funds from being used—even if only indirectly —for intentional disability discrimination. In this sense, the conclusions reached in Mississippi Commission and Barbour may signal that Judge Garland believes that Dole and its progeny impose relatively limited restrictions on Congress's spending powers.

Of the various federalism cases interpreting the scope of federal powers granted by the Constitution, perhaps Judge Garland's most extensive writings have been with respect to Congress's power under the Commerce Clause. The Supreme Court has established, in cases such as United States v. Lopez and United States v. Morrison , that the Commerce Clause provides Congress with broad power to regulate "channels of interstate commerce"; "instrumentalities of interstate commerce"; and "those activities that substantially affect interstate commerce." In interpreting the scope of the third category, Judge Garland, citing to both Supreme Court and circuit precedent, has reasoned that in order to evaluate potential interstate effects, federal courts must "focus[] on the activity that the federal government seeks to regulate," as well as "activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affect[] interstate commerce." In an opinion issued a little over a month after the Supreme Court decided Morrison , Judge Garland, writing on behalf of a unanimous circuit panel in Allied Local & Regional Manufacturers Caucus v. EPA , dismissed a challenge to a CAA provision authorizing the EPA to regulate architectural coatings for purposes of limiting volatile organic compound emissions. In so doing, the court held that "none of the considerations" that had led the Supreme Court to find "Congress's authority wanting" in Lopez or Morrison had "any application to section 183(e) of the [CAA]." In particular, Judge Garland concluded that the provisions in question were distinguishable from those legislative enactments recently invalidated in Morrison in that the CAA regulated economic activity; contained a jurisdictional element and express congressional findings describing the problems of "interstate transport of ozone"; and had a link to substantial effects on interstate commerce that was not "attenuated."

In perhaps a closer case, Judge Garland wrote on behalf of a D.C. Circuit panel in Rancho Viejo, LLC v. Norton , a case involving a challenge to a FWS determination that a developer's construction of a fence as part of a planned commercial development resulted in a "take" of arroyo southwestern toads in violation of the ESA. Rejecting assertions that the federal government was regulating activities that were both wholly intrastate and noneconomic in nature, Judge Garland wrote that the fact that certain toads' habitat did not extend beyond the state of California did not serve as a basis for invalidating the provisions of the ESA, as these provisions regulated "takings, not toads." In Judge Garland's view, the "regulated activity" in question was not the harm to the toad, but rather the construction of the planned commercial development, an activity with a clear and substantial impact on interstate commerce. In so concluding, Judge Garland rejected claims that the ESA provided the federal government with power over land-use decisions that the plaintiffs alleged were "an area of traditional state concern." Relying heavily on an earlier decision by the U.S. Court of Appeals for the Fourth Circuit, Judge Garland ultimately concluded that "the protection of endangered species cannot fairly be described as a power 'which the Founders denied the National Government and reposed in the States.'" Judge Garland's opinion in Rancho Viejo was relied upon almost a decade later by a D.C. Circuit panel in Mississippi Commission , where the panel (of which Judge Garland was a member) rejected a Commerce Clause challenge to Congress's authority to regulate local nitrogen oxide emissions on the grounds that the "regulated activity" under the CAA was not the release of emissions, but rather "the activities that produce the emission." Applying this reasoning, the court held that the entities producing the emissions were "indisputably [] engaged in substantial interstate commerce."

Judge Garland's opinion in Rancho Viejo prompted criticism when the plaintiffs unsuccessfully petitioned the D.C. Circuit for en banc rehearing of the case. In particular, Judge Sentelle disagreed that the Supreme Court's decisions in Lopez and Morrison could be read to allow Congress to "regulate any activity if the act of regulating catches an entity or an action that is itself commercial independent of the noncommercial nature of the regulated entity and activity." Instead, Judge Sentelle contended that Judge Garland's approach could be seen to "continue[] [the D.C. Circuit's] divergence from contemporary Supreme Court Commerce Clause jurisprudence" because the "protection of a non-commercial, purely local toad is not within any of the Lopez categories." Judge Roberts applied similar reasoning in a separate dissent, arguing that to sustain the ESA on the grounds that the "commercial development constitutes interstate commerce" seemed "inconsistent" with Lopez and Morrison insofar as the majority effectively "ask[ed] whether the challenged regulation substantially affects interstate commerce, rather than whether the activity being regulated does," "effectively obliberat[ing]" the "limiting purpose" of the Commerce Clause. As a consequence, Judge Garland's Commerce Clause jurisprudence suggests that he has adopted a construction of the clause that provides the federal government with broad authority to regulate various forms of activity that others have viewed as noneconomic, intrastate activity not subject to federal regulation.

Finally, with respect to the doctrine of state sovereign immunity that the Supreme Court has recognized underlies the Eleventh Amendment, Judge Garland has authored two arguably relevant opinions having divergent results. In Watters v. WMATA , he wrote a unanimous panel opinion holding that the state signatories to the WMATA interstate compact were immune from the imposition or enforcement of an attorney's lien, narrowly reading the partial waiver of sovereign immunity contained in the compact. Nonetheless, in Barbour , Judge Garland concluded that the states participating in WMATA had waived immunity through their acceptance of federal transit money, as the "language" of the Civil Rights Remedies Equalization Act of 1986 "unambiguously conditions a state agency's acceptance of federal funds on its waiver of Eleventh Amendment immunity." Importantly, Judge Garland's majority opinion in Barbour held that a clear condition imposed in a federal statute suffices to waive sovereign immunity, and a state's beliefs when accepting federal funds are irrelevant in considering whether a waiver of sovereign immunity was "knowing." Such an approach limits an alternate route to maintain an immunity defense recognized by another federal court of appeals. As a result, Barbour , like some other federalism cases discussed here, could be seen to manifest some skepticism on Judge Garland's part about judicially imposed limits intended to protect the sovereign rights of states. However, because of the limited number of cases in which he ruled on the scope of federal power vis-à-vis the states, it is difficult to conclude with certainty that Judge Garland would, if appointed to the Supreme Court, be less receptive to federalism-based arguments than Justice Scalia had been.

Freedom of Religion

During Judge Garland's tenure on the D.C. Circuit, he has not authored any opinions indicating in any detail his substantive interpretation of constitutional or statutory religious freedom laws. However, he has joined opinions involving religious freedom issues, including constitutional and statutory challenges arising under the First Amendment and the Religious Freedom Restoration Act (RFRA). Arguably the most significant religious freedom case in which Judge Garland had a role is Priests for Life v. HHS , a case currently under review by the Supreme Court. The original decision in that case upheld a contraceptive coverage requirement of the Affordable Care Act that was generally applicable to employers, finding no violation of the protection for religious exercise by employers available under RFRA. Although he did not serve on the panel that originally heard the case, Judge Garland participated in the court's decision to deny a petition for en banc rehearing in the case. The decision to deny rehearing was issued per curiam, and Judge Garland did not join other judges' concurring or dissenting opinions for that decision.

Although Judge Garland's role in Priests for Life provides little substantive insight into his legal reasoning on the issue of religious freedom, it may be notable depending on the High Court's eventual disposition of the consolidated contraceptive coverage cases. The Court appeared evenly divided following oral arguments, which could lead it to hold the cases over to its next term for rehearing. If Judge Garland were to be confirmed prior to the Court's potential rehearing, he may play an important role in deciding these cases.

Freedom of Speech

While serving on the D.C. Circuit, Judge Garland has ruled in a number of major free speech cases. In particular, because the D.C. Circuit has exclusive jurisdiction over certain election law appeals, the bulk of these matters have involved free speech issues arising in the context of campaign finance regulations and rules governing political parties. Perhaps most significantly, Judge Garland wrote the opinion for a unanimous en banc court in Wagner v. FEC , upholding the prohibition on campaign contributions by certain federal government contractors against a challenge under the First Amendment and the Equal Protection clause of the Fifth Amendment. The court's ruling in Wagner was narrow in the sense that it was limited to a ban on contractors making contributions to candidates, parties, and traditional political action committees (PACs) during the negotiation or performance of a government contract. The Wagner court concluded that the federal ban serves "sufficiently important" government interests by guarding against quid pro quo corruption (and the appearance thereof) and protecting merit-based administration. Relying on the Supreme Court's 2003 ruling in FEC v. Beaumon t , Judge Garland's opinion applied the less rigorous "closely drawn" standard and rejected the argument that the Supreme Court's 2010 ruling in Citizens United v. FEC cast doubt on Beaumon t . Perhaps revealing aspects of Judge Garland's views on the constitutionality of campaign finance regulation more broadly, the opinion deferred to Congress's judgment on how best to serve the government's interests. Quoting from Beaumont , the opinion observed that "[j]udicial deference is particularly warranted where, as here, we deal with a congressional judgment that has remained essentially unchanged throughout a century of 'careful legislative adjustment.'" In contrast, judicial deference to congressional determinations has arguably not been as evident in the Supreme Court's more recent campaign finance jurisprudence. At the same time, because of the unanimity of the Wagner decision and the decision's relatively narrow scope, it may be difficult to draw any firm conclusions regarding Judge Garland's views on judicial deference toward congressional determinations respecting campaign restrictions from the Wagner decision, in and of itself.

Nonetheless, in another context, Judge Garland generally took a favorable view of the regulation of federal lobbyists. Specifically, in National Association of Manufacturers (NAM) v. Taylor , he authored a unanimous opinion rejecting a First Amendment challenge to a federal lobbying disclosure law. The court found no evidence of harassment connected to lobbying disclosures that might justify more skepticism with regard to the disclosure requirements, and, in a display of deference to Congress arguably like that in Wagner , ultimately concluded that there was "no reason why Congress cannot enact a scheme that plausibly yields a significant portion of the information it seeks."

On the other hand, during Judge Garland's tenure on the D.C. Circuit, the appellate court issued a well-known campaign finance ruling that resulted in the establishment of super PACs, political committees that spend independently of any candidate or party and are permitted to receive unlimited contributions. In SpeechNow.org v. FEC , Judge Garland joined, but did not author, a unanimous en banc opinion holding that limits on contributions to groups that make only independent expenditures are unconstitutional. Relying on the Supreme Court's ruling in Citizens United , the court reasoned that if independent expenditures do not give rise to corruption, then contributions to groups making only independent expenditures do not give rise to corruption. Thus, the court held that contribution limits are unconstitutional as applied to such groups. In view of the Supreme Court's binding precedent in Citizens United , the analysis in SpeechNow.org was necessarily "straightforward," in the court's view. Therefore, although the ruling was consequential, it is difficult to infer Judge Garland's campaign finance philosophy from this case.

Regarding the rights of political parties, Judge Garland's opinions have produced mixed results for the parties themselves, while generally interpreting the First Amendment as having limited import in deciding such disputes. In Libertarian Party v. District of Columbia Board of Elections , he joined a unanimous opinion holding that a Washington, DC, law which prevented write-in votes for a third-party candidate from being officially tallied and reported did not amount to a severe burden on that individual's associational rights and, therefore, did not require the application of strict scrutiny. On the other hand, in LaRouche v. Fowler , Judge Garland's opinion favored a political party's right to decide its own nominees. Among other things, the court rejected a First Amendment challenge to a party's effort to limit who can run as a candidate of the party on the grounds that the party's effort was a rational means of advancing its interest in winning elections. With possible relevance to the current presidential party nominating process, Judge Garland wrote, "A party may, of course, pay heavily at the polls for the perception that it treats its members, delegates, or candidates unfairly. But that is a matter for the party to weigh, and for the people to decide in the general election. It is not a basis upon which a court can intervene as long as the party's processes rationally advance its legitimate interests."

Outside the election law context, Judge Garland has, relative to other areas of law, authored or joined few opinions analyzing the Free Speech Clause of the First Amendment . Of these cases, his most notable majority opinion was perhaps the 2005 case Initiative and Referendum Institute (IRI) v. United States Postal Service. In that case, Judge Garland, on behalf of the court, held that a Postal Service regulation wholly prohibiting the solicitation of signatures outside postal buildings did not withstand First Amendment scrutiny as a valid "time, place, and manner" regulation of speech, as the rule was "neither ... narrowly tailored nor ensure[d] ample alternative channels of communication." The Postal Service had defended the prohibition on the grounds that solicitors "at times" become disruptive, "occasionally" distracting postal employees from their duties. In Judge Garland's opinion, this argument all but conceded that the "across-the-board" prohibition "necessarily bars much solicitation that is not disruptive," leading to the conclusion that a "substantial portion of the burden on speech does not serve to advance" the government's interest. The ruling in IRI was not only unanimous, but rested on two separate and independent grounds casting doubt on the constitutionality of the underlying regulation, suggesting that the case was not terribly controversial and may not provide any broad insights into Judge Garland's approach to free speech questions.

At the same time, a few trends do appear in Judge Garland's free speech rulings outside the context of election law. On the issue of commercial speech —an area of law where narrow majorities of the Supreme Court have struck down state and federal regulations on the marketing of certain products in recent years —he has joined majority opinions affirming the Federal Trade Commission's authority to prohibit commercial speech it finds to be misleading, and otherwise protect certain consumer interests. And in American Meat Institute v. USDA, an en banc ruling reviewing whether a regulation mandating disclosure of country-of-origin information for certain meat products was improperly compelled speech in violation of the First Amendment, Judge Garland joined a majority of the court in upholding the regulation. In so doing, the D.C. Circuit concluded that the government can require disclosures not only to remedy potential consumer deception, but also in the context of a long history of consumer interest in the particular disclosure. These decisions have led some to suggest that Judge Garland may prefer a more deferential approach to the government with respect to analyzing the constitutionality of commercial speech regulations. In the context of public employee speech, an area of First Amendment law in which—in contrast to commercial speech cases—narrow majorities of the High Court have, at times, tended to favor the authority of the government over the rights of employees, Judge Garland has joined several majority opinions siding with public employees who alleged that their employers retaliated against them for engaging in protected speech. And in Mpoy v. Rhee , Judge Garland authored an opinion that, while ultimately ruling for the government on qualified immunity grounds, acknowledged that controlling D.C. Circuit precedent "could be in tension" with a recent Supreme Court case that may have "narrow[ed] ... the realm of employee speech left unprotected" by the Constitution. Collectively, his rulings on commercial speech and public employee speech may signal areas of First Amendment law where he could, if elevated to the High Court, depart from recent majorities of the Court that have included Justice Scalia.

Perhaps Judge Garland's most noteworthy writings on free speech issues outside the context of election law involve the rights of the press to gather and maintain confidential sources. Specifically, in Lee v. DOJ , he dissented from the denial of rehearing en banc in a case examining journalists' qualified privilege to refuse to testify in civil suits to which they are not parties. While the panel had concluded that the plaintiff had overcome the journalists' qualified privilege, Judge Garland, in dissenting from the denial of rehearing, argued that the "significance of the court's decision in [the] case should not be underestimated." He contended that the standard applied by the panel gave insufficient weight to the public's interest in protecting the confidential sources of journalists. In particular, Judge Garland argued that, without robust protections for journalists during civil discovery in cases to which they are not parties, potential sources will be reluctant to disclose information to the press. Such a result, according to Judge Garland, would ultimately chill the speech of journalists, undermining the "Founders' intentions to protect the press 'so that it could bare the secrets of the government and inform the people.'" Similarly, in Boehner v. McDermott , he joined the dissenting opinion of Judge David Sentelle, which maintained that the government cannot, consistent with the First Amendment, punish the publication of information that was lawfully obtained from a source who obtained it unlawfully . This position provides far more protection for the publication of information that is of public interest than the position asserted by Judge Raymond Randolph's majority opinion, which maintained that the government can "forbid individuals from disclosing information they have lawfully obtained" in certain contexts. Judge Garland's decisions favoring stronger protections for the rights of journalists and the disclosure of information have led some observers to argue that he has a broad view of the First Amendment's free speech protections. Nonetheless, because of the limited number of free speech cases outside the context of election law in which he has participated, the record may be too thin to make firm pronouncements about Judge Garland's overall views on free speech issues.

International and Foreign Law

Whereas Justice Scalia's written work and public speeches reflected distinct attitudes toward the use of contemporary foreign law and practice, ratified treaties, and international custom to inform understanding of the U.S. Constitution and federal statutes, Judge Garland's jurisprudence offers comparatively little guidance as to his likely approach on such matters if appointed to the Supreme Court. For example, while Justice Scalia was a vociferous critic of using contemporary foreign law and practice to interpret the meaning of the Constitution, Judge Garland has not opined on the appropriateness of using foreign law as an interpretative aid beyond observing, in ruling that a federal judge had not committed misconduct by criticizing judicial reliance on foreign law to interpret the U.S. Constitution, that the practice was "the subject of a spirited debate among the Justices of the Supreme Court, and it cannot constitute misconduct for an appellate judge to choose one side or the other." In other cases, Judge Garland appears to have eschewed reaching issues of international law when he believed it unnecessary to address such matters to resolve the case before the court.

During his tenure on the D.C. Circuit, Judge Garland has decided a number of cases involving the primacy of conflicting requirements imposed by federal statutes and international legal agreements. In adjudicating such cases, the circuit court often has been called upon to employ two canons of construction. One of these canons is the "last-in-time" rule, which generally provides that, if a conflict exists between a federal statute and a ratified treaty, then the requirements of the most recently enacted measure are controlling. The other is the canon against abrogation, which recognizes that courts should, to the extent possible, construe ambiguous statutory language in a manner that does not abrogate international legal agreements.

Judge Garland appears reluctant to construe statutory provisions in a manner that would abrogate earlier international agreements if another interpretation is possible. While he has written or joined opinions holding that provisions of a particular federal statute effectively abrogate provisions of a previously ratified treaty, he has also joined panel opinions interpreting later-in-time federal statutes in a manner that avoids abrogating earlier international agreements. One notable example occurred in Owner-Operator Independent Drivers Association, Inc. v. U.S. Department of Transportation , where Judge Garland joined another member of a three-judge panel in upholding the Federal Motor Carrier Safety Administration's (FMCSA's) exemption of commercial vehicle operators licensed by Mexico or Canada from generally applicable medical certification requirements. The exemption from statutory requirements was made by the FMCSA to avoid violating earlier reciprocal licensing agreements made by the United States with Mexico and Canada. While the majority acknowledged that the federal statute spoke "in general yet textually unambiguous terms" that could be construed to abrogate the earlier agreements, it found insufficient evidence that Congress intended the statute to have this effect. "[A]bsent some clear and overt indication from Congress," the court declared, "we will not construe a statute to abrogate existing international agreements even when the statute's text is not itself ambiguous."

Judge Garland's approach in Owner-Operator Independent Drivers Association , where "general yet textually unambiguous terms" employed by a statute were presumed not to have been intended to abrogate an earlier agreement, might immediately appear to be in tension with Justice Scalia's textualist approach to statutory interpretation. But Justice Scalia recognized that background presumptions may sometimes inform a court's interpretation of a statute, and he indicated his support for interpreting federal statutes in a manner consistent with international legal obligations whenever possible. Adding a further layer of uncertainty is the variation in contexts in which Judge Garland and Justice Scalia presumed that Congress did not intend for a legislative enactment to contravene an international legal norm or agreement. In Owner-Operator Independent Drivers Association , for example, Judge Garland joined an opinion that applied the canon against abrogation in a case that primarily concerned activities within the United States. On the other hand, Justice Scalia appeared to most forcefully advocate interpreting federal statutes consistently with international legal norms in cases where a federal statute potentially reached conduct recognized under international law as primarily subject to the jurisdiction of a foreign sovereign. Justice Scalia was arguably less likely to interpret a statute addressing wholly domestic activities so as to avoid potential conflicts with international legal norms and agreements.

The relatively limited number of cases considered by Justice Scalia and Judge Garland concerning arguably conflicting provisions in federal statutes and international agreements makes it difficult to assess whether they would have generally reached the same conclusions in similar circumstances. Judge Garland's jurisprudence suggests that, like Justice Scalia, he would strive to interpret federal statutes consistently with international legal obligations whenever statutory requirements were deemed ambiguous, though it seems possible that the two jurists' more general approach to statutory interpretation could lead to different conclusions on matters of statutory ambiguity.

Right to Bear Arms

During his tenure on the D.C. Circuit, Judge Garland has not authored any judicial opinions or writings outside the court that directly address the Second Amendment or the constitutionality of firearms regulations. He has, however, cast votes in cases addressing these issues, and some commentators have debated the extent to which they indicate his broader views on this area of law. The most notable of these votes is arguably his 2007 vote dissenting from the denial of en banc review in Parker v. District of Columbia . In Parker , a panel of the D.C. Circuit had held, by a vote of 2-1, that the Second Amendment protects an individual's right to possess a firearm and that the District of Columbia's laws—which functionally prevented handgun ownership—violated the Second Amendment. The District sought en banc review of this decision, which the D.C. Circuit denied by a vote of 6-4. Judge Garland was among those dissenting. However, the order denying en banc review gave no indication of the views of any voting judge as to why the D.C. Circuit should or should not reconsider the case. Subsequently, the Supreme Court granted review, and in a 2008 decision authored by Justice Scalia, affirmed the decision of the D.C. Circuit panel by a vote of 5-4.

Earlier votes by Judge Garland also touched on Second Amendment issues. In 2005, he was among a majority of judges who voted against en banc review of Seegars v. Ashcroft , a case challenging the same D.C. gun restrictions that were eventually overturned in Heller . Previously, in National Rifle Association of America, Inc. (NRA) v. Reno , Judge Garland voted as part of a three-judge panel to uphold a DOJ rule that permitted the federal government to retain temporarily firearms background check information, a regulation that had been promulgated after the enactment of the Brady Handgun Violence Prevention Act. The NRA majority concluded that the Brady Act did not bar DOJ from temporarily retaining such information and that DOJ had permissibly construed the statute when it promulgated the rule. However, neither the NRA court nor the Seegars court evaluated the constitutionality of the underlying firearm laws being challenged. As a result, these few cases would seem a tenuous basis for any firm conclusions as to Judge Garland's approach to the Second Amendment and firearms restrictions if he were to be confirmed to the Supreme Court.

Separation of Powers

Judge Garland's writing from the bench to date has not revealed in express terms whether he approaches questions involving the separation of powers as resolvable mainly through an evaluation of strict delineations of governmental powers set forth in the Constitution (what scholars frequently term a "formalist" approach), or by determining whether a challenged law or action significantly upsets the equilibrium of powers the Framers hoped to achieve (a more flexible "functionalist" approach). There may, however, be a few clues to be drawn from his written opinions, as well as his joining (or refusing to join) the opinions of his fellow judges. For example, in an order denying a petition to have the entire D.C. Circuit rehear a case challenging the Affordable Care Act on Origination Clause grounds, Judge Garland did not join Judge Brett Kavanaugh's dissent, which articulated a formalist rationale for vacating the original panel decision in order to reach the same result by interpreting the Clause in a way that Judge Kavanaugh viewed as truer to its text. On the other hand, Judge Garland declined to sign on to a statement concurring in the denial of rehearing that endorsed the "purposive" test the original panel had applied and suggested the dissent's proposed test would turn the Origination Clause into an "empty formalism," which in itself reveals very little about Judge Garland's views. Why Judge Garland voted to stay out of this particular fray is impossible to discern from the record, but his silence could suggest his support for the original panel opinion and its functionalist approach, or perhaps a preference for avoiding the constitutional issue and leaving the matter to Congress, in contrast to the formalist view espoused by the dissent. Or perhaps he simply regarded the issue as not sufficiently important to warrant a grant of rehearing. Supreme Court Justices may have had similar thoughts, as suggested by the denial of certiorari in this case.

Judge Garland did not significantly participate in the Zivotofsky series of cases at the D.C. Circuit, which involved a statute that was ultimately viewed by the Supreme Court as impinging on executive branch power in the realm of foreign affairs, except to refrain from publicly supporting a petition for en banc review of a three-judge panel's decision to decline to review the case on political question grounds. That decision was subsequently reversed by the Supreme Court on the grounds that the judiciary has a duty to resolve significant separation of powers questions regarding Congress's authority to legislate in matters touching upon the executive power to recognize foreign sovereigns. Judge Garland's decision with respect to en banc review could indicate a preference for applying the political question doctrine to establish the proper role of the court in such cases—that is, to avoid its involvement—but there is no way of knowing from the record.

Perhaps less speculation is required to draw inferences from Judge Garland's dissent in In re Aiken County . In that case, the majority considered the question of whether to require the NRC to fulfill a statutory mandate to process a license application for the construction of a permanent nuclear waste repository at Yucca Mountain as one to be resolved by applying a simple formula: absent any objection regarding the constitutionality of an act of Congress, the President is required to give it effect. Stating that the NRC's failure to complete review of the application "raises significant questions about the scope of the Executive's authority to disregard federal statutes," the majority granted a petition for mandamus to order compliance. Judge Garland dissented, suggesting the court should take into account circumstances he believed made the NRC's noncompliance with the letter of the law reasonable. Citing circuit precedent establishing that a court has discretion to withhold a writ of mandamus that would order the doing of a "useless thing" (albeit one that is technically required by law), he contended that the court ought not to second-guess the NRC's determination that it had insufficient funds available to pursue further consideration of the license. In Judge Garland's view, forcing the NRC to expend what was left of the amounts previously appropriated to it for this purpose without any real chance of moving the project forward would "do nothing to safeguard the separation of powers." In contrast to the majority's strict construction of the statute and adherence to constitutional roles, Judge Garland's pragmatic approach may suggest that he leans toward the functionalist school of separation of powers thought.

In re Aiken County may be indicative of another trend in Judge Garland's approach to separation of powers questions, namely, a hesitancy to have the court interfere with the executive branch. In interpreting the meaning of the term "agency records" in the context of the Freedom of Information Act (FOIA), Judge Garland imputed separation of powers concerns to Congress in determining that White House access records are not releasable even if they are in the possession of the Secret Service. To decide otherwise, he wrote, "could substantially affect the President's ability to meet confidentially with foreign leaders, agency officials, or members of the public. And that could render FOIA a potentially serious congressional intrusion into the conduct of the President's daily operations."

In the decade and a half since September 11, 2001, the D.C. Circuit has confronted a host of issues touching on separation of powers principles regarding the wartime role of the judicial branch in relation to the political branches in cases brought by detainees held at the U.S. Naval Station, Guantanamo Bay, Cuba. In Al Odah v. United States , the court held itself to be without jurisdiction to examine the lawfulness of executive detention of foreign nationals held at Guantanamo, relying on Supreme Court precedent that enemy aliens held abroad are not entitled to pursue habeas writs, in part due to the interference with military operations such judicial examination would entail. Judge Garland joined the majority opinion in that decision, which was later reversed by the Supreme Court in Rasul v. Bush . After Congress altered the habeas statute to preclude jurisdiction and the Supreme Court held that effort to be unconstitutional, Al Odah's petition worked its way back to the D.C. Circuit. Judge Garland then voted with a unanimous three-judge panel to uphold a less rigorous evidentiary standard than the detainee urged—namely, a preponderance of the evidence standard with admission of reliable hearsay—and to affirm the denial of the writ. While he also voted as part of a panel that found habeas jurisdiction available to challenge not only the legality of detention but also the conditions of detention at Guantanamo, rejecting the government's contention that Congress had effectively precluded such challenges, the court in that case ultimately deferred to the government's view that the challenged prison procedures were "rationally related to security," reversing the court below.

Judge Garland's opinion for a unanimous panel in Parhat v. Gates may be read to suggest that his willingness to defer to the executive branch in military matters goes only so far, at least where Congress has prescribed a role for the courts. In that case, the court declined to validate the decision of a Combatant Status Review Tribunal (CSRT) based on the insufficiency of evidence proffered by the government to prove the petitioner's affiliation with an "associated force" fighting alongside Al Qaeda or the Taliban. To do otherwise, Judge Garland wrote, "would [] place a judicial imprimatur on an act of essentially unreviewable executive discretion. That is not what Congress directed us to do when it authorized judicial review of enemy combatant determinations under the [Detainee Treatment] Act."

Noting the controversy still pending in Bismullah v. Gates regarding the scope of evidence that the government was required to produce in CSRT challenges, the Parhat court evaluated the case on the record alone and found that the reliance on intelligence documents in question was unsupported. While the Supreme Court's decision in Boumediene v. Bush effectively obviated reviews under the Detainee Treatment Act, Judge Garland's Parhat opinion continues to be cited in detainee habeas cases for the proposition that evidence presented by the government must be in a form that permits a reviewing court to assess its reliability. Still, in subsequent cases, no detainee has prevailed on the grounds that the evidence put forth by the government was unreliable. Moreover, the court has repeatedly upheld the government's use of hearsay evidence, explaining that hearsay in such cases is always admissible, but that judges must assess its reliability. It appears that the D.C. Circuit, after some prodding from the Supreme Court, has, to some degree, more closely scrutinized the executive branch in detainee habeas cases, but for detainees at Guantanamo, prevailing in court remains an uphill battle. Judge Garland's participation in these cases seems to indicate his position in the mainstream of D.C. Circuit judicial thought with respect to the court's role in evaluating executive branch detention, as approved by Congress.

In one notable case interpreting the Military Commission Act (MCA) of 2006 and its enumerated charge of material support for terrorism, the D.C. Circuit declined to defer to Congress's assertion that the charge is one that has traditionally been triable by military commission and therefore may be tried even if the underlying conduct took place prior to the MCA's enactment. The court explained its role where Congress's view on the subject was mistaken, stating "it is not our task to rewrite the statute to conform with the actual state of the law but rather to strike it down insofar as the Congress's mistake renders the statute unconstitutional." Accordingly, assuming without deciding that the Ex Post Facto Clause of the Constitution applies at Guantanamo, the court vacated the accused's conviction for material support of terrorism and solicitation on ex post facto grounds, but sent his conspiracy conviction back to a three-judge panel to consider his other constitutional challenges to the MCA. Judge Garland cast his vote with the majority and did not write separately. Although he did not join Judge Judith Rogers's concurring opinion emphasizing the separation of powers implications of delegating to the executive branch an arguably judicial role, Judge Garland's vote with the majority might be viewed as an assertion of the judiciary's primacy in interpreting the law in this regard. On remand, the panel reversed the remaining charge for conspiracy, holding that Congress had encroached upon Article III judicial power by authorizing military commissions to try the purely domestic crime of inchoate conspiracy. The full court vacated this decision and ordered rehearing en banc, possibly setting up another opportunity to consider Judge Garland's approach to separation of powers clashes.

Substantive Due Process

Because the docket of the D.C. Circuit tends to focus less on social issues than the dockets of the regional circuit courts of appeals do, Judge Garland has had few opportunities to express his views on the scope of the substantive component of the Due Process Clauses of the Fifth and Fourteenth Amendments, the source for various unenumerated rights that have been recognized by the Supreme Court over the years, including the right to privacy, the right to an abortion, and the right to marry. As several commentators have noted, Judge Garland has never heard a case interpreting the propriety of an abortion regulation in his tenure on the D.C. Circuit. In the few cases that have raised substantive due process issues in which the nominee has participated, Judge Garland's votes suggest an arguably moderate view of the scope of the doctrine. For example, in Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach , he voted with the majority in an 8-2 en banc decision, reversing a panel decision and holding that the Due Process Clause does not include a substantive right for the terminally ill to access experimental drugs. Moreover, in keeping with his writings prior to joining the D.C. Circuit wherein he voiced deep skepticism at the Lochner era view that the Due Process Clauses protect economic liberties, such as freedom to contract, Judge Garland joined a majority opinion that accorded the economic legislation in question—the Coal Industry Retiree Health Benefit Act of 1992—a "presumption of constitutionality." Further, the majority opinion concluded that the presumption could not be overcome because the legislation, which retroactively imposed liability on certain mining companies, was justified by a rational legislative purpose to remedy a health care funding crisis in the coal industry."

Nonetheless, in contrast to Justice Scalia, who openly questioned the substantive due process doctrine and criticized cases like Roe v. Wade , Judge Garland does not appear to have rejected the concept wholly. He did not, for example, join Judge Laurence Silberman's concurrence in Lightfoot v. District of Columbia , in which the senior circuit judge described the doctrine of substantive due process as an "invention" of the Supreme Court with "unstable boundaries." Potentially more telling, Judge Garland joined the panel opinion in Butera v. District of Columbia , a 2001 case which recognized that the substantive component of the Due Process Clauses can, in certain circumstances, impose affirmative duties to act on state officials when the officials create dangerous situations or render citizens more vulnerable to harm; a rule creating an exception to the long-standing principle that the "Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests...." Moreover, in Hutchins v. District of Columbia , an en banc decision of the D.C. Circuit upholding the District of Columbia's juvenile curfew law, Judge Garland, while voting to uphold the law and declining to strike the law down on due process grounds, did not join a key section of Judge Silberman's majority opinion. In that section, Judge Silberman argued that judicial examinations of due process rights need to begin with a "careful description of the asserted right" —a reference to a 1988 opinion by Justice Scalia which asserted that due process rights must be viewed narrowly by the courts in terms of the "most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified" —and concluded that "juveniles do not have a fundamental right to be on the streets at night without adult supervision." Instead, Judge Garland, joined by Judge Patricia Wald, concurred only in the ultimate result reached by Judge Silberman, arguing that while the curfew law implicated the "constitutional rights of children and their parents," the law passed "intermediate constitutional scrutiny." In this sense, while very little is known about how Judge Garland might approach particular issues respecting substantive due process rights, like the right to an abortion, the nominee seems to have a broader view of the doctrine than the man whom he could succeed on the Court.

Takings

Relative to Justice Scalia, who, during his tenure on the Supreme Court, authored and joined several opinions that can be interpreted as strengthening the protection of private property rights afforded by the Takings Clause of the Fifth Amendment of the U.S. Constitution, Judge Garland has said little on the subject and adjudicated very few cases raising takings issues. This is unsurprising, as the D.C. Circuit does not hear many takings claims since the Tucker Act vests the U.S. Court of Federal Claims (CFC) with jurisdiction over such claims when the plaintiff seeks more than $10,000 in compensation from the federal government. With limited exceptions, the CFC's jurisdiction over such claims is exclusive, and appeals from the CFC are to the U.S. Court of Appeals for the Federal Circuit, not the D.C. Circuit. While the Fifth Amendment has been construed to apply to states and localities, such as the District of Columbia, there are few takings cases that have arisen against the District during Judge Garland's time on the court, and none in which he has participated. As a result, there is an insufficient basis to predict with confidence Judge Garland's views regarding the extent to which the Takings Clause protects private property rights.

Appendix. Judge Garland and the D.C. Circuit