The Administrative Conference of the United States, or ACUS, bills itself as an independent, nonpartisan agency that provides recommendations to improve the government’s processes and procedures.
Jonathan Mitchell, a 42-year-old visiting law professor at Stanford University and former Texas solicitor general, waded into politically charged litigation prior to his September 2017 selection to lead the agency. He represented Mississippi in the state’s successful defense of its law that permits government employees and businesses to deny certain services to LGBT people based on their own religious beliefs, which was passed in response to the legalization of same-sex marriage.
Legal scholars and lawyers affiliated with ACUS told Bloomberg Law that the agency’s legitimacy depends in part on its reputation for nonpartisanship. Mitchell’s litigation activity doesn’t disqualify him from leading ACUS, they said. But staying neutral would be critical.
“The risk that any ACUS head faces if they try to politicize the agency is that nobody will pay attention to its reports and recommendations,” David Vladeck, a Georgetown University law professor and ACUS fellow, told Bloomberg Law. “I hope that Mitchell takes this job with an eye towards the agency’s real mission to put aside partisanship and just give agencies good, solid advice that doesn’t reflect politics.”
The federal government has adopted many of ACUS’ recommendations to improve agency decision-making, boost transparency, reduce costs, and increase revenue. A 2015 budget law implemented recommendations related to civil penalties that will raise government revenue by more than $1.3 billion over 10 years, according to the Congressional Budget Office.
ACUS has an assembly of members drawn from the public and private sectors who debate, amend, and vote on recommendations and projects, as well as a host of former members who serve as fellows providing advice and expertise. ACUS fellows pointed out that prior chairmen had reputations for conservative views without any problems, including Justice Antonin Scalia. Mitchell clerked for Scalia at the U.S. Supreme Court.
But Mitchell is also an atypical choice because he’s not an administrative law specialist, they said.
“I am troubled by both his partisan activities and his lack of ad law expertise,” Richard Pierce, a George Washington University law professor and ACUS fellow, told Bloomberg Law in an email. “I hope his performance on the job proves that my concerns are not justified.”
Mitchell declined to comment. The White House didn’t respond to a request for comment.
Legal Scholar, Government Lawyer
Mitchell has a long legal resume and has been active in the conservative legal movement since his law school days at the University of Chicago, where he led the school’s chapter of the Federalist Society.
After completing his clerkships, Mitchell has rotated between the government and academia for the bulk of his career. He served in the Justice Department’s Office of Legal Counsel during the George W. Bush administration, worked as a researcher at Georgetown University Law Center, and taught at law schools at the University of Chicago, George Mason University, University of Texas at Austin, and Stanford.
Mitchell’s experience in administrative law, the focus of ACUS, is less expansive. He has published 10 law review articles, including several on constitutional law. Although none focused exclusively on administrative law, a 2018 article on judicial review contains a section on the Administrative Procedure Act. He has taught law school courses on administrative law, most recently in 2010.
During his four-year stint as Texas solicitor general, Mitchell argued three cases before the Supreme Court. He argued a fourth as counsel for the plaintiff who prevailed in Campbell-Ewald v. Gomez, a 2016 ruling that boosted plaintiffs’ ability to bring class action claims.
In 2016, he joined
Union Funding Challenges
On the same day the committee approved his nomination, Mitchell filed class actions against two public sector unions, working jointly with the Freedom Foundation, a conservative advocacy organization in Washington. The lawsuits alleged that the Washington Education Association and an American Federation of State, County and Municipal Employees should refund nonmembers’ “agency fees.” Unions collected the fees to cover the costs of bargaining and other nonpolitical expenses.
Mitchell filed at least eight other fee-refund class actions on behalf of workers in the lead-up to the U.S. Supreme Court’s June ruling in Janus v. AFSCME, which said public sector unions can’t charge nonmembers mandatory agency fees. He filed more lawsuits after the court decided Janus.
While these cases could potentially cost unions millions, many of them target more than just fees. A lawsuit against AFSCME California, for instance, claims that public employees who joined unions prior to Janus were unconstitutionally coerced such that they didn’t provide legally valid consent when they signed membership contracts.
That lawsuit also challenges a California law that enforces the terms for agreements to have public sector union dues deducted from their paychecks, which often restrict when they can revoke their authorization.
LGBT Rights v. Religious Beliefs
Mitchell also represents the U.S. Pastor Council in a pair of lawsuits filed last month that aim to provide allowances for religious organizations and Christian-owned businesses not to hire LGBT people individuals if it offends their religious beliefs. The council is a multidenominational Texas nonprofit with roughly 1,000 member churches.
One lawsuit challenges the Equal Employment Opportunity Commission’s interpretation of Title VII of the 1964 Civil Rights Act to prohibit discrimination based on sexual orientation or gender identity, without exceptions for religious beliefs. A second lawsuit raises similar objections to an ordinance banning workplace discrimination in Austin, Texas.
While the union and LGBT rights lawsuits have been proceeding, Mitchell’s nomination has not. He is one of more than 175 nonjudicial nominees that await confirmation by the Senate.
Senate Majority Leader
Winning confirmation, however, would likely spell the end of his involvement in ongoing lawsuits.
“I would 100 percent expect him to withdraw as counsel in pending litigation if he’s confirmed to chair ACUS,” Allison Zieve, director of Public Citizen Litigation Group and an ACUS fellow, told Bloomberg Law.