Justice Sotomayor on Consequence of a Procedure or Substance.

Photos © Aditya Mohan. These views are not legal advice but business opinion based on reading some English text written by a set of intelligent people.

When officers of the executive branch are drafting advisories, rules or orders, especially those pertaining to burgeoning fields like generative AI or high impact areas such as immigration, these can sometimes obscure a related law's initial purpose. As Associate Justice Sotomayor emphasized in her dissent in United States v. Texas, et al. (03/19/2024) on the significance of procedure, 

"Procedure can be just as consequential as substance." 

This observation is particularly relevant in the context of regulations for emerging technologies as well as complex public policy issues such as immigration law. The procedures established to implement the laws, including how they are enforced, interpreted, and applied, can inadvertently transform or even undermine a law’s foundational intent. 

The image reflect the significant moment of the signing of the Magna Carta in June 1215, which underscore the enduring struggle to balance law's content with its application.

For instance, advisory or executive orders intended to foster innovation and ensure ethical use of generative AI might be encumbered by overly complex compliance mechanisms, public perception as a result of the order, or fear of the executive branch. For example, the White House Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence enlists precise mandates for developing, auditing, and testing AI technologies. It has no statutory value. But at the same time, it not only deters the innovative spirit but also misaligns with the broader, adaptable ethos of the US legal framework based on common law, which has historically thrived on a more fluid, experience-driven legal doctrine. This, in turn, could stifle innovation or lead to unintended consequences that depart from the original goal of promoting beneficial and equitable use of technology based on a long-standing precedent or law. 

Similarly, the Associate Justice Sotomayor mentioned in her dissent in United States v. Texas, et al. in context of claims by Texas on regulates the entry and removal of noncitizens when such authority is with the federal government only since the Civil War.

“The Court confronts a state immigration law that will transform the balance of power at the border and have life-altering consequences for noncitizens in Texas. Texas’s novel scheme requires careful and reasoned consideration in the courts. The District Court gave S.B.4 careful consideration and found that it was likely unconstitutional. The Fifth Circuit has not yet weighed in, but nevertheless issued a one-sentence administrative order that is maximally disruptive to foreign relations, national security, the federal-state balance of power, and the lives of noncitizens. The Court should not permit this state of affairs. I dissent.”

This underscores the necessity for careful consideration not only of the laws themselves but also of the frameworks set up for their application and enforcement.

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