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Hereby Neutering—The Doctrines That Serve to Subject Administrative Agencies to the Rule of Law

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Hereby Neutering—The Doctrines That Serve to Subject Administrative Agencies to the Rule of Law HARVARD JOURNAL of LAW & PUBLIC POLICY VOLUME 42, NUMBER 3 SUMMER 2019 ARTICLES MASTERPIECE CAKESHOP AND THE FUTURE OF RELIGIOUS FREEDOM Mark L. Movsesian ................................................................. 711 THE SICKNESS UNTO DEATH OF THE FIRST AMENDMENT Marc O. DeGirolami ................................................................ 750 YAKUS AND THE ADMINISTRATIVE STATE James R. Conde & Michael S. Greve. ....................................... 807 CORPUS LINGUISTICS AND “OFFICERS OF THE UNITED STATES” James C. Phillips, Benjamin Lee & Jacob Crump. ................... 871 NOTES GIVE VETERANS THE BENEFIT OF THE DOUBT: CHEVRON, AUER, AND THE VETERANS CANON Chadwick J. Harper .................................................................. 931 THE ORIGINAL MEANING AND SIGNIFICANCE OF EARLY STATE PROVISOS TO THE FREE EXERCISE OF RELIGION Branton J. Nestor ..................................................................... 971 HARVARD JOURNAL of LAW & PUBLIC POLICY Editor-in-Chief RYAN PROCTOR Deputy Editor-in-Chief Articles Editors CHADWICK HARPER Managing Editors HAYLEY EVANS BRAD BARBER DANIEL JOHNSON WILL COURTNEY Executive Editors KEES THOMPSON ANNIKA BOONE GRAHAM CARNEY Deputy Managing Editors Assistant Articles Editors RYAN FOLIO NICOLE BAADE NICK AQUART CHANSLOR GALLENSTEIN CHASE BROWNDORF AARON HSU JORDAN GREENE HUGH DANILACK PARKER KNIGHT III KEVIN KOLJACK Articles Board VINCENT LI BEN FLESHMAN GRANT NEWMAN Notes Editors ANASTASIA FRANE DAVID RICHTER AARON GYDE JOSHUA HA SAM WILLIAMS BRANTON NESTOR JAMES MCGLONE JOHN MITZEL Events Manager Chief Financial Officer JOEY MONTGOMERY JACOB THACKSTON ASHER PEREZ JASJAAP SIDHU DYLAN SOARES Technology Manager Subscriptions Manager DOUG STEPHENS IV GRAHAM CARNEY ASEEM JHA JOSHUA STOUT STEVE SZROM COMMUNICATIONS EDITOR R.J. MCVEIGH Senior Editors ALEX CAVE ADAM KING JOHN MITZEL JOSHUA STOUT DOUGLAS COLBY BRIAN KULP JOEY MONTGOMERY STEVE SZROM ANASTASIA FRANE JOSEPH LONGNECKER JASJAAP SIDHU MATTHEW WEINSTEIN TERRENCE GEORGE RYAN MAK DYLAN SOARES JOSHUA HA JAMES MCGLONE DOUG STEPHENS IV Editors PAYTON ALEXANDER CHANCE FLETCHER TREVOR LUTZOW SEANHENRY VANDYKE JOHN BAILEY MARK GILLESPIE JOHN MORRISON AARON WARD MAX BLOOM COOPER GODFREY JASON MUEHLHOFF TRUMAN WHITNEY TODD CARNEY ALEXANDER GUERIN TERRENCE OGREN VINCENT WU NICK CORDOVA AARON HENRICKS JAY SCHAEFER JAMIN DOWDY THOMAS HOPKINS STUART SLAYTON ROBERT FARMER JOHN KETCHAM ISAAC SOMMERS Founded by E. Spencer Abraham & Steven J. Eberhard BOARD OF ADVISORS E. Spencer Abraham, Founder Steven G. Calabresi Douglas R. Cox Jennifer W. Elrod Charles Fried Douglas H. Ginsburg Orrin Hatch Jonathan R. Macey Michael W. McConnell Diarmuid F. O’Scannlain Jeremy A. Rabkin Hal S. Scott David B. Sentelle Bradley Smith Jerry E. Smith THE HARVARD JOURNAL OF LAW & PUBLIC POLICY RECEIVES NO FINANCIAL SUPPORT FROM HARVARD LAW SCHOOL OR HARVARD UNIVERSITY. IT IS FUNDED EXCLUSIVELY BY SUBSCRIPTION REVENUES AND PRIVATE CHARITABLE CONTRIBUTIONS. The Harvard Journal of Law & Public Policy is published three times annually by the Harvard Society for Law & Public Policy, Inc., Harvard Law School, Cambridge, Massachusetts 02138. ISSN 0193-4872. Nonprofit postage prepaid at Lincoln, Nebraska and at additional mailing offices. POSTMASTER: Send address changes to the Harvard Journal of Law & Public Policy, Harvard Law School, Cambridge, Massachusetts 02138. Yearly subscription rates: United States, $55.00; foreign, $75.00. Subscriptions are renewed automatically unless a request for discontinuance is received. The Journal welcomes the submission of articles and book reviews. Each manuscript should be typed double-spaced, preferably in Times New Roman 12-point typeface. Authors submit manuscripts electronically to [email protected], preferably prepared using Microsoft Word. Views expressed are those of the authors and do not necessarily reflect the views of the Society or of its officers, directors, editors, members, or staff. Unless otherwise indicated, all editors are students at the Harvard Law School. Copyright © 2019 by the Harvard Society for Law & Public Policy, Inc. PREFACE Americans have long cherished our country’s expansive notions of freedom of speech and religion, but as our current culture war rages on, the scope of these rights going forward has increasingly come into doubt. This third Issue of Volume 42 of the Harvard Journal of Law & Public Policy begins with a consideration of the future of religious freedom and the First Amendment more generally. Professor Mark Movsesian examines Masterpiece Cakeshop, a case decided last term by the Supreme Court about a baker who refused to design a cake for a same-sex wedding, and discusses its implications. Although the case did little to resolve the conflict between anti-discrimination laws and the conscience claims of individual service providers, it did lay bare the rising cultural conflict between the “Nones,” who reject organized religion, and the “Traditionally Religious.” Professor Marc DeGirolami sees similar trends at play in First Amendment doctrine more generally. He argues that the spectacular success of the First Amendment in protecting speech and religion has become its own undoing. As limitations on freedom of speech and religion aimed at safeguarding the common good have been discarded, it has become increasingly difficult to show how these freedoms serve the common good. Hence, he concludes, new calls for restricting the scope of the First Amendment are inevitable. While the first two Articles of the Issue consider the future, the next two look back to history. James Conde and Professor Michael Greve retell the story of Yakus v. United States, an oft- overlooked Supreme Court case from 1944. They argue that Yakus laid the foundations for the modern administrative state by disjoining—and thereby neutering—the doctrines that serve to subject administrative agencies to the rule of law. Doctor James Phillips, Benjamin Lee, and Jacob Crump apply the tools of corpus linguistics to shed light on the original meaning and scope of the phrase “Officers of the United States” in Article II of the Constitution. They conclude that the original definition of officer was broader than the one adopted by the Supreme Court last term in Lucia v. SEC. No. 3] Preface ii This Issue also contains two student Notes authored by editors of the Journal. Chadwick Harper examines the conflict between the veteran’s canon, which calls in veteran’s benefit cases for interpretive doubt to be resolved in the veteran’s favor, with the deference courts typically owe agency interpretations under Chevron and Auer. He argues that the veteran’s canon should prevail over Chevron and Auer deference when the two appear to come into conflict. Branton Nestor offers a fresh consideration of the free exercise provisos cited by Justice Scalia in City of Boerne v. Flores. Contrary to Justice Scalia, he concludes that the provisos constituted specifically enumerated, narrow exceptions to an otherwise broad free exercise right. I would be remiss if I did not thank in this final Issue all the editors whose countless hours of hard work have made this forty-second Volume of the Journal a great success. They have shepherded every Article we published through a painstaking, multi-month process of selection, substantive editing, and multiple rounds of line editing. I would especially like to thank all the editors this Issue who, under the superb leadership of Kevin Koljack, were able to accomplish the challenging feat of publishing the Journal’s first corpus linguistics article. In particular, Truman Whitney, Joshua Ha, Douglas Stephens, Alex Cave, Chance Fletcher, Chanslor Gallenstein, Mark Gillespie, and Matthew Weinstein all did much more than was expected of them on this assignment. I also owe a special debt of gratitude to my fiancée Farheen for all the support she has given me in my term as Editor-in- Chief, not the least of which included several tedious hours personally setting our subscriber list back in order. She has been exceptionally patient with me during all the hours I have spent cooped up in the Journal office away from her. I am truly grateful for the opportunity to serve as Editor-in- Chief of this storied Journal. It has been the greatest privilege of my law school career. I am confident that in future years the Journal will continue to be a bastion of quality conservative and libertarian scholarship in an academy and a profession that are sorely in need of it. Ryan M. Proctor Editor-in-Chief MASTERPIECE CAKESHOP AND THE FUTURE OF RELIGIOUS FREEDOM MARK L. MOVSESIAN* INTRODUCTION Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation.1 Like most such disputes, the case involved a small business that declined, because of the owner’s religious convictions, to provide a service for a same-sex wedding—in this case, Colorado cake designer Jack Phillips’s convictions against designing and baking a cake for a gay couple, Charlie Craig and Dave Mullins.2 In most of these cases, courts have been unwilling to exempt businesses from the anti-discrimination laws on religious grounds and have ruled in favor of the customers. One might have thought Jack Phillips would lose in * Frederick A. Whitney Professor and Director, Center for Law and Religion, St. John’s. I thank Marc DeGirolami, John McGinnis, Micah Schwartzman, and
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