Historical Analogies in Second and Seventh Amendment Cases--And Analogies More Generally

A recent Fifth Circuit decision, Texas Tobacco Barn v. US Dep't of Health & Human Services, was handed down two years to the day after the Supreme Court decision it applied to hold that agency proceedings within the FDA resulting in civil penalties violate the Seventh Amendment. After providing a bit of background for those readers who don't have the misfortune to follow the Supreme Court's convoluted federal jurisdiction rulings as closely as I do, I'll use the case as an opportunity to compare and contrast the historical analogy approach the Roberts Court has taken to the Second and Seventh Amendments. For those readers already put off by the subject, here's the bottom line: the Court's purported use of historical analogies is mostly a mask for its normative preferences.

Now, that background: In its 2024 decision in SEC v. Jarkesy, an ideologically divided 6-3 Court held that the Seventh Amendment requires jury trials whenever the government seeks civil monetary penalties in a case that is analogous to a civil action available under the common law circa 1791, so long as the case does not fall into one of a short list of exceptions for so-called "public rights" cases. Most of what I'll discuss today concerns that first inquiry: the analogy. However, I'll first say a word about public rights.

Article III of the Constitution assigns the judicial power to life-tenured judges and justices, but from early in the Republic, Congress has assigned adjudicatory tasks to non-Article III personnel. It still does so today, with Social Security Administration disability determinations alone dwarfing the number of adjudications by the Article III judiciary. If all such cases needed to be decided by Article III judges and justices, the life-tenured judiciary would need to be expanded enormously. Thus, since relatively early in our history, the Supreme Court has recognized that Congress can assign some adjudicatory responsibilities to non-Article III federal adjudicators.

Which responsibilities? What has become the canonical formulation was given by the Supreme Court in 1856 in Murray's Lessee v. Hoboken Land & Improvement Co.: "there are matters, involving public rights, which may be presented in such form that the judicial power is capable of acting on them, and which are susceptible of judicial determination, but which Congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper."

What makes a case a matter of "public rights?" The Court has given various formulations over time. It certainly includes cases brought against the government for money, partly because in such cases, the government enjoys sovereign immunity and thus can waive such immunity on condition of adjudication on its terms. Cases involving tariffs have also generally fallen within this category. I won't get much into it now except for two observations.

First, the public rights category originated as a means of deciding which cases could be assigned to non-Article III adjudication as an interpretation of Article III. Only later, in the 1989 case of Granfinanciera, S.A. v. Nordberg, did the Court import its public rights jurisprudence into its approach to the Seventh Amendment.

Second, and notably, Granfinanciera and other late-20th-century cases restricting congressional power to assign cases to non-Article III adjudication lacked a clear partisan valence or were arguably tinged liberal. Justice Brennan wrote the majority opinion in Granfinanciera as well as the plurality opinion in the 1982 Northern Pipeline case that adopted a formalistic and fairly restrictive view of congressional power to utilize non-Article III adjudication. However, over the last couple of decades, the Roberts Court has discovered that by narrowly construing public rights in both Article III and Seventh Amendment cases, it can limit the adjudicatory power of agencies. What began as a neutral or plaintiff-protective set of doctrines has become one of the deregulatory tools of the Roberts Court. That's why Jarkesy was 6-3 on ideological grounds.

Turn now to the first part of the Jarkesy test: whether a statutory claim by the government is sufficiently analogous to a 1791 common law claim to implicate the Seventh Amendment. In Jarkesy itself, the Court said that the SEC's enforcement of securities fraud laws were akin to fraud suits under the common law in the founding era. In Texas Tobacco Barn, the Fifth Circuit said that FDA civil penalty proceedings against the defendant for selling vape products without authorization was akin to a "trespass-on-the-case . . . against the 'unwholesome practices' of selling 'bad provisions or wine'" (quoting Blackstone) and to "the common law cheat action" available to one who has been "'defraud[ed]' by false affirmations that something was of 'superior Quantity or Quality than it [was]'" (quoting an 1803 treatise on English common law).

I confess to not knowing enough about the common law of the late 18th century to specify the various ways in which modern securities fraud is similar to and different from trespass on the case (which is a cause of action I remember learning about in law school) or cheat (which I had never encountered before reading Texas Tobacco Barn). I do know that there was a dissent in Texas Tobacco Barn. That dissent (which treated the historical analogy question as relevant to the public rights question, but that need not concern us) argued that enforcement of the FDA's limits on selling unauthorized vapes is similar to the common law actions the majority identifies only at a very high level of generality.

There was also a dissent in Jarkesy. It mostly objected to the majority's application of the Granfinanciera framework to a case brought by the government to enforce a statutory obligation, arguing that the majority's approach was inconsistent with the 1977 Atlas Roofing case. In the course of that argument, however, the Jarkesy dissent did observe that modern securities law differs from common law fraud in at least one critical respect: the latter, unlike the former, requires that there must be "actionable harm to an individual" for a case to proceed.

Now for some crass legal realism. The two Fifth Circuit judges in the Texas Tobacco Barn majority are Republican appointees, while the dissenter is a Democratic appointee. We see the same ideological pattern in the Supreme Court alignment in Jarkesy. Perhaps this is explained by some tendency of conservatives to see similarities and liberals to see differences?

Nope. For one thing, there's no reason to expect such tendencies. For another, we see exactly the opposite set of tendencies in Second Amendment cases. There, pursuant to NYS Rifle & Pistol Ass'n v. Bruen, the question whether a law regulating firearms currently in common use is valid turns on whether it is sufficiently analogous to laws regulating firearms in the founding era (or possibly around 1868, when the Fourteenth Amendment was ratified). And lo and behold, in those cases, when the Court divides ideologically, it is the Republican appointees who say the current laws are disanalogous and the Democratic appointees who say they are analogous.

Thus, no general view about what makes a modern law analogous to founding-era (or Reconstruction-era) laws can explain the ideological pattern. When finding analogies allows Republican appointees to stymie agency regulation (as in Jarkesy), they do so; when finding disanalogies allows Republican appointees to stymie firearms regulations (as in Bruen and its progeny), they do so. And vice-versa for the Democratic appointees.

However, to be fair to the Democratic appointees on the Supreme Court, in the relevant cases, they repeatedly object that the determination whether current law A is analogous to 1791 (or 1868) law B is highly manipulable. Justice Jackson has been particularly vociferous in objecting to the historical test as no real test at all. And that's apart from the fact that, as Professor Segall has argued repeatedly (and most recently here) on this blog, the very idea that we would determine what gun regulations are permissible today by asking only what gun regulations were widespread in the very different world of 1791 (or 1868) makes no sense.

There I would conclude, but I want to consider the possibility that the objection I have raised proves too much because it calls into question analogical reasoning in all settings. That would be problematic because analogical reasoning is quite common in the law. Justice Thomas's Bruen opinion actually captured the point pretty well:

When confronting . . . present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.”

So far, so good. Specifying a relevant metric is a normative enterprise, but sometimes there will be consensus about what the relevant normative move should be. In Second Amendment cases, the Bruen opinion continues, there are "at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense." If one accepts that finding historical analogues is the right way to measure the constitutionality of contemporary firearms regulations, that's sensible enough. It responds to a question of the sort "do we care about color or function?"

However, the Thomas response doesn't answer a different question about analogically reasoning: how similar?

Suppose we decide we care about color. I once wrote an amicus brief in support of the respondent in a Supreme Court case, with support from a law firm that agreed to print it. Under the Court's rules, the cover was supposed to be dark green. The firm produced a cover that was kinda sorta dark green but also kinda sorta brown--and also, weirdly speckled. The firm filed the brief without showing me the cover first. The clerk rejected it as not sufficiently green. Luckily, there was still time to re-file with a different, more conventionally dark green cover. 

When it comes to color, there are clearly going to be edge cases. That's even more true with respect to historical analogues. Moreover, there will be level-of-generality questions. In this past Term's decision in Wolford v. Lopez, the majority said that founding-era laws excluding armed persons from entering private land were about preventing poaching, a different why from the challenged Hawaii law at issue in the case. Justice Kagan, in dissent, said this:

The “why” is sufficiently close. Both sets of laws respond to the dangers and harms that someone with a gun can cause on another person’s property. That the old laws had a special (though by no means exclusive) concern with poaching does not matter. 

Bruen and later Second Amendment cases say that an analogue need not be a "twin" or a "dead ringer" but they do not say how close the similarity must be, except in generalities that are normatively disputed.

I do not dispute that analogical reasoning has an important place in the law. However, where values are contested--as they are with respect to the administrative state and firearms--the fact that we see ideology-based decision making is strong evidence that the judges and justices are deciding first and drawing analogies or disanalogies second.

-- Michael C. Dorf