Research Matters: Aziz Huq on “Removal as a Political Question”

Aziz Huq

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Aziz Huq, Assistant Professor of Law, is the author of “Removal as a Political Question,” published recently in the Stanford Law Review (you can find an online version here). The paper explores the proper role, if any, courts have in designing federal administrative agencies. It is focused on the Supreme Court’s recent decision in Free Enterprise Fund v. Public Company Accounting Oversight Board. Huq evaluates the effects of judicial intervention in agency design and its potential negative consequences.

How did this research come to be?

This paper came to be through my teaching of Constitutional Law.  We explore in that class the basic architecture of the Constitution’s design. One of the very fruitful things for me in teaching that class is thinking about how different pieces of the Constitution’s design interact with each other. For example: How does the idea of judicial review interact with separation of powers? How does our federalism interact with our separation of power between Congress, the president, and agencies?

Every year, I try to incorporate whatever the Supreme Court has said on these topics in the past year. Recently, I’ve taught a case called the Free Enterprise Fund vs. the Public Company Accounting Oversight Board. This is an interesting case because it suggests that the Court is going to start getting into the business of micromanaging the details of agency design in the regulatory state. The Court’s going to get into the business of second-guessing the architecture of regulatory agencies that Congress and the executive have set up. And the paper really is an effort to come to grips with the fact that this task seems at odds with the way that the Court describes its own power of judicial review. The Court typically has a very modest view of its judicial review power. By contrast, Free Enterprise Fund seems to envisage a very ambitious judicial project. In class, we talk about the conflict between these two ideas.  I do so not merely to baffle students. It’s a genuine problem and one worth considering at length considering that at stakes is the good functioning of the federal administrative state.

What can be gained by this work?

I think it’s plausible that when the Supreme Court decides cases about the design of federal or national institutions, it’s very hard for the justices to grasp the full consequences of the principles they announce. One of the responsibilities of legal scholars is to think hard about the practical consequences of rules and doctrine in ways that are not results-oriented, not merely a translation of the scholars’ own policy preferences. I think that commitment’s “very Chicago.” People here have strong policy preferences but in their scholarship they aim at as reasoned and objective a view of the effects, consequences, and justifications of law as feasible.  

I think that this sort of scholarship, if it’s careful, empirically grounded, and precise enough, is most valuable when it deflates the exaggerated or infeasible claims made on behalf of the law and especially judicial decisions. So the Free Enterprise Fund Court makes a claim that democracy will be benefited by the decision. This is something that’s been taken up and repeated by other scholars. But if you look closely at the consequences of the decision, it’s not at all obvious what the Court means by “promoting democracy” or how the decision is going to translate in the complex institutional circumstances wherein the Court operates. The Court’s rhetoric about how it’s going to improve liberty or deepen democracy rests often on fragile foundations, and I think it’s salutary to have a voice out there being appropriately cautious about it.

What did you learn while writing this?

I make it a point when I write papers to try and read up on a literature that I had not fully grasped beforehand. One of the great strengths of this Law School is that the faculty and also the students are constantly pushing themselves intellectually to master and to be able to use tools with which they were unfamiliar. So in writing this paper, I had to grapple with a number of literatures that I hadn’t really worked through, mostly in the political science domain, and it was great fun to do so.

What further research has this paper inspired?

One of the questions this paper has prompted for me is whether the Court should ever have authority to decide questions of structural constitutionalism. This is obviously an issue in the health care case, which is about federalism in an important way.  In work subsequent to this, I’ve developed a series of arguments and claims to the effect that the Court should almost never engage in enforcement of federalism or the separation of powers. These cases don’t turn out the way the Court expects them to or claims that they will.