UC Berkeley UC Berkeley Electronic Theses and Dissertations Title The Federalist Society and the "Structural Constitution:" An Epistemic Community At Work Permalink https://escholarship.org/uc/item/54z517w5 Author Hollis-Brusky, Amanda Publication Date 2010 Peer reviewed|Thesis/dissertation eScholarship.org Powered by the California Digital Library University of California The Federalist Society and the “Structural Constitution:” An Epistemic Community At Work by Amanda Lee Hollis-Brusky A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Political Science in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Robert A. Kagan, Co-Chair Professor Shannon C. Stimson, Co-Chair Professor Gordon Silverstein Professor Daniel A. Farber Spring 2010 The Federalist Society and the “Structural Constitution:” An Epistemic Community At Work © 2010 by Amanda Lee Hollis-Brusky Abstract The Federalist Society and the “Structural Constitution:” An Epistemic Community At Work by Amanda Lee Hollis-Brusky Doctor of Philosophy in Political Science University of California, Berkeley Professor Robert A. Kagan, Co-Chair Professor Shannon C. Stimson, Co-Chair This thesis contributes to an understanding of the pathways of civic influence into the least dangerous branch of American politics – the Judicial Branch. Specifically, this thesis examines the influence of the Federalist Society for Law and Public Policy – a conservative and libertarian legal network of more than 40,000 members – on twelve of the most salient Supreme Court decisions concerning federalism and the separation of powers over the last three decades. As a special case, it also examines Federalist Society influence on a subset of controversial Executive Branch policies issued under George W. Bush. To understand the unique nature of this civic group‟s influence, it establishes the Federalist Society for Law and Public Policy as a kind of epistemic community; i.e., a network of legal professionals and civic leaders bound together and shaped by a set of beliefs about law, the nature of government, and constitutional interpretation. Using this framework, it proceeds to demonstrate how individual members of the Federalist Society acted as “cognitive baggage handlers,” carrying these shared ideas into their roles as legal professionals (judges, academics, litigators, government officials). Finally, it evaluates the extent to which these actors were successful or not in diffusing their ideas into law and policy. It finds that while there is substantial evidence of Federalist Society influence in the areas of federalism and separation of powers, overall the results have been mixed. The final chapter examines why that was and speculates as to the conditions that might facilitate and frustrate epistemic community influence more generally. 1 2 This thesis is dedicated to: The late Nelson W. Polsby, who brought it to life with ten little words (you should study the Federalist Society as an epistemic community); Robert A. Kagan, Gordon Silverstein, Shannon C. Stimson, and Daniel A. Farber, who shepherded me through various stages of its development; My family on the east coast who keep me grounded; Sean, for his unwavering support, patience, and optimism; And Annabelle, whose laughter and smiles sustained me through the homestretch. i Table of Contents List of Tables and Figures iii Introduction 1 The Federalist Society as an Epistemic Community 6 Separation of Powers I: The Unitary Executive Theory in Court, 1983 – 1988 25 Separation of Powers II: The Non-Delegation Doctrine in Court, 1989 – 2001 46 Separation of Powers III: The Unitary Executive Theory in the Executive Branch, 67 2001 – 2008 Federalism I: The Commerce Clause in Court, 1992 – 2000 90 Federalism II: State Sovereignty in Court, 1996 – 1999 115 An Epistemic Community at Work on the “Structural Constitution” 140 Conclusion 166 Appendix (List of Interviews) 172 References 175 Notes 181 ii List of Tables and Figures Table 2.1 Participation by Federalist Society Network Actors, Citations to 33 Federalist Society Scholarship, and Citations to Originalist Sources in INS v. Chadha (1983) Table 2.2 Participation by Federalist Society Network Actors, Citations to 37 Federalist Society Scholarship, and Citations to Originalist Sources in Bowsher v. Synar (1986) Table 2.3 Participation by Federalist Society Network Actors, Citations to 40 Federalist Society Scholarship, and Citations to Originalist Sources in Morrison v. Olson (1988) Table 3.1 Participation by Federalist Society Network Actors, Citations to 55 Federalist Society Scholarship, and Citations to Originalist Sources in Mistretta v. United States (1989) Table 3.2 Participation by Federalist Society Network Actors, Citations to 58 Federalist Society Scholarship, and Citations to Originalist Sources in Clinton v. City of New York (1998) Table 3.3 Participation by Federalist Society Network Actors, Citations to 62 Federalist Society Scholarship, and Citations to Originalist Sources in Whitman v. American Trucking (2001) Table 4.1 Federalist Society Network Participants As Documented Signatories 76 on Office of Legal Counsel Memos, 2001-2008 Table 4.2 Catalogue of Citations to Federalist Society Scholarship and 78 Originalist Sources in Federalist Society Network Actor-Authored Office of Legal Counsel Opinions Authorizing the War on Terror, 2001-2003 Table 5.1 Participation by Federalist Society Network Actors, Citations to 100 Federalist Society Scholarship, and Citations to Originalist Sources in New York v. United States (1992) Table 5.2 Participation by Federalist Society Network Actors, Citations to 104 Federalist Society Scholarship, and Citations to Originalist Sources in United States v. Lopez (1995) Table 5.3 Participation by Federalist Society Network Actors, Citations to 109 Federalist Society Scholarship, and Citations to Originalist Sources in United States v. Morrison (2000) iii Table 6.1 Participation by Federalist Society Network Actors, Citations to 124 Federalist Society Scholarship, and Citations to Originalist Sources in Seminole Tribe v. Florida (1996) Table 6.2 Participation by Federalist Society Network Actors, Citations to 128 Federalist Society Scholarship, and Citations to Originalist Sources in Printz v. United States (1997) Table 6.3 Participation by Federalist Society Network Actors, Citations to 134 Federalist Society Scholarship, and Citations to Originalist Sources in Alden v. Maine (1999) Table 7.1 Number of Federalist Society Network Participants as Amici, 142 Counsel, and Judicial Decision-Makers in Chadha (1983) through American Trucking (2001) Table 7.2 Number of Sources of Federalist Society Scholarship Cited by Amici, 146 Counsel, and Judicial Decision-Makers in Chadha (1983) through American Trucking (2001) Table 7.3 Number of Citations to the Originalist Canon by Amici, Counsel, 150 and Judicial Decision-Makers in Chadha (1983) through American Trucking (2001) Table 7.4 Overall Impact of Federalist Society Network Ideas on Supreme 153 Court Majority and/or Concurring Opinions in Chadha (1983) through American Trucking (2001) Table 7.5 Relationship Between Federalist Society Network Participation and 155 Degree of Impact of Federalist Society Network Ideas in Majority and/or Concurring Opinions in Chadha (1983) through American Trucking (2001) Figure 1.1 Participation at Federalist Society National Meetings By Professional 10 Occupation, 1982-2008 iv Figure 1.2 The Federalist Society As An Epistemic Community 13 Figure 1.3 Most Active Federalist Society Participants in Conservative Media 19 Discussions of The Structural Constitution, 1981-2008 Figure 1.4 Top Twenty-Eight Most Frequent Participants at Federalist Society 21 National Conferences, 1982 – 2008 Figure 1.5 Epistemic Community Framework Applied to Judicial Branch 23 and Executive Branch Figure 4.1 Mentions of the “Unitary Executive” in Executive Branch Public 69 Papers,1981-2008 Figure 4.2 Number of Presidential Signing Statements Issued from Presidents 83 Reagan to Bush II including Number and Percentage of Statements that Raised a Constitutional Objection v Introduction ---------------------------------------------------------------------------------------------------- In just a quarter-century, the Federalist Society has transformed itself from a student organization into a vital, national institution... I share your devotion to the Constitution and I'm proud to be standing here with you tonight. I'm proud to be in such distinguished company as Justice Antonin Scalia... proud to be here with Justice Clarence Thomas... Justice Sam Alito... [and] Justice John Roberts. I appreciate the Secretary of Labor Elaine Chao joining us and she kindly brought her husband, Senator Mitch McConnell. From the great state of Alabama, Senator Jeff Sessions. I appreciate the attendance of former Attorney General Ed Meese, former Attorney General Bill Barr [and] how about your Master of Ceremonies, my good friend Ted Olson? - President George W. Bush, Address before the Federalist Society, November 15, 2007.1 How does the interpretation and application of the United States Constitution change over time? What role, if any, do civic actors play in that process? In 1994 a group of legal scholars submitted an amicus curiae (friend of the court) brief to the United States Supreme Court in United States v. Lopez, a case that successfully challenged the Gun Free School Zones Act. Though Lopez did not in fact