Eric Segall and Jonathan Adler on King v. Burwell
Michael Ramsey

The University of Pennsylvania Law Review Online has this debate between Eric Segall (Georgia State) and Jonathan Adler (Case Western): King v. Burwell and the Validity of Federal Tax Subsidies Under the Affordable Care Act.

On the textual issues, Professor Segall principally argues (footnotes omitted):

The plaintiffs rely on an [Affordable Care Act] section stating that subsidies will be available for certain low-income taxpayers who purchase health insurance from an "Exchange established by the State." They then argue that exchanges created by the federal government are not "established by the State," and therefore the IRS acted illegally by deciding to provide subsidies on federal exchanges. ...

The problem with the plaintiffs’ argument is that it ignores another section of the ACA, which states that, if the states do not create a health exchange as required by the first section, the federal government will establish "such exchange."  The authority given to the U.S. Department of Health and Human Services (HHS) is not to create "an" exchange, a "federal" exchange, or a "United States" exchange but quite specifically "such" exchange.

What does the word "such" connote in the context of the law? Given that the entire structure of the ACA relies on three essential components—one of which is the availability of federal subsidies—it is no surprise that the IRS read the statute to allow for subsidies on both state and federal exchanges. The only legal issue is whether the clear language of the entire law makes that reading impermissible because it is an unreasonable interpretation of the statutory scheme. ...

The word "such" according to Black’s Law Dictionary means something "having just been mentioned." This clear parsing of the relevant statutory language shows that the government should win (in both the hypothetical and the real case).

He adds as a second textual argument:

[A]s health law expert Nicholas Bagley has argued, if the law is read as the plaintiffs ... argue, federal exchanges would not be able to provide insurance to anyone.  The ACA says that only people who "reside[] in the State that established the Exchange" may purchase insurance from the exchanges. If Congress really meant to distinguish between state-established exchanges and federal exchanges, the law would seem to preclude people residing in a state with a federally established exchange from purchasing insurance from that exchange. Congress could not possibly have intended for HHS to create federal exchanges incapable of selling health insurance.

He also has some purpose arguments, plus Chevron, but apparently the foregoing are the central textual arguments as he sees them.  The second of these seems potentially strong (the first one does not move me much).

Professor Adler responds, first emphasizing (as one would expect) the "established by the State" language; he continues:

Section 1321 provides that should a state fail to create the "required exchange"—that is, the exchange required under section 1311—"the Secretary shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements." But this language does not establish the proposition that an exchange established by HHS is an exchange "established by the State." Section 1321 expressly refers to HHS as the entity that must "establish" the exchange and provides that HHS does so "within" the state, rather than on the state's behalf. And were there any doubt that HHS is not a "State" under the ACA, section 1304 expressly provides that "'State' means each of the 50 States and the District of Columbia."

On the second point, Professor Adler responds:

Professor Segall claims that, were the Court to accept the plaintiffs' interpretation of the ACA, "federal exchanges would not be able to provide insurance to anyone" because section 1312 provides that "qualified individuals" must be residents of "the State that established the Exchange." Yet the relevant statutory provision, when read in context, creates no such absurd result and is readily harmonized with the rest of the statutory text. Section 1312's definition of a "qualified individual" who may "enroll in any qualified health plan available to such individual" is—like the other requirements of Part II of Subtitle D (sections 1311 through 1313)—addressed to the states on the assumption that they have complied with section 1311's command that each state establish its own exchange. This requirement is conditioned on the state's cooperation. Should a state fail to cooperate, however, the residency requirement has no effect, as there is no state-established exchange to which it may apply.

I'm interested in King v. Burwell mostly on the question whether it is truly a text versus purpose case, or whether, to the contrary, the government has a strong textual argument.  I'm still not sure what to think after these posts.

I also like the case as an example of statutory originalism -- everyone seems focused on the text and the intent of the Congress that enacted it.  Professor Segall, for example, relies (in his conclusion) on "clear text and unassailable context" to show what the ACA "intended."

RELATED: Professor Adler links to video of a King v. Burwell event at the Heritage Foundation here (with Carrie Severino of the Judicial Crisis Network, Simon Lazarus of the Constitutional Accountability Center, and Robert Weiner of Arnold & Porter).

ALSO:  More from Josh Blackman (and Ilya Shapiro) here.

(The King v. Burwell oral argument is Monday 3/2).


Steven Calabresi & Justin Braga: The Jurisprudence of Justice Antonin Scalia
Michael Ramsey

Steven Calabresi (Northwestern University - School of Law) and Justin Braga (Brown University) have posted The Jurisprudence of Justice Antonin Scalia: A Response to Professor Bruce Allen Murphy and Professor Justin Driver on SSRN. Here is the abstract: 

This is a book review of Professor Bruce Allen Murphy’s recent biography of Justice Antonin Scalia entitled: Scalia: A Court of One. We show that Professor Murphy’s account of events to which Professor Calabresi was in part a witness is wrong and at times almost blinded by anti-Catholicsm. In addition, we are baffled by Professor Murphy’s utter disregard for Justice Scalia’s contributions to the field of legal interpretation and his mis-understanding of Supreme Court history. All in all, we believe Justice Scalia should be praised for his many accomplishments, his contributions to the law, and his impact on the theories of textual interpretation.


Jeffrey Brand: Eavesdropping on Our Founding Fathers
Michael Ramsey

Jeffrey Brand (University of San Francisco - School of Law) has posted Eavesdropping on Our Founding Fathers: How a Return to the Republic's Core Democratic Values Can Help Us Resolve the Surveillance Crisis (Harvard Journal of National Security, Vol 6, 2015) on SSRN. Here is the abstract: 

The 21st Century has brought with it a surveillance crisis unprecedented in our history – a crisis that threatens our core values, among them the right to free expression, a free press, protection from unreasonable searches and seizures, and privacy. The crisis also threatens the right of citizens to engage in democratic policy making.

It is a crisis that should surprise no one after the catastrophic events of September 11, 2001, wars in Afghanistan and Iraq, a never-ending so-called War on Terror, and a concurrent, unimaginable technology revolution digitizing our information and communication systems. Indeed, cataclysmic national security concerns coupled with the ability to monitor literally every communication of every American have spawned a generation of offspring with names like Stellar Wind, Prism, Upstream, Manning, Assange, Wikileaks and Snowden.

The article, "Eavesdropping on Our Founding Fathers. How a Return to the Republic’s Core Democratic Values Can Help Us Resolve the Surveillance Crisis", provides a look at the current crisis through the lens of the history that led to the passage of the Foreign Intelligence Surveillance Act (FISA), the legislation that lies at the heart of the current controversy and around which all administrations, Democratic and Republican, and America’s surveillance bureaucracy, the NSA, the CIA, the NDI and the FBI, have danced for nearly four decades. The article argues that a proper balance between legitimate national security interests and the sacred values and civil liberties that buttress America’s democratic institutions and aspirations can be best achieved if the current surveillance landscape is examined through that lens.

In sum, "Eavesdropping on Our Founding Fathers" argues that solutions to the current surveillance crisis lie in a return to core values and first principles that implement the intent of the Founding Fathers to create an adversarial system of checks and balances among the various branches of the government which included bolstering the independence of the judiciary – values and principles which were eloquently argued during the FISA debates. The article examines those debates and details compromises that were made in the final legislation that became FISA – compromises that ultimately undermined FISA and allowed it to become a tool of rather than a check on the Executive Branch whose power the Act was intended to curb. 

Most important, "Eavesdropping on Our Founding Fathers" identifies five critical 'lessons learned' that, if followed, can help us resolve the current surveillance crisis.


Seven Questions on Immigration Non-Enforcement
Michael Ramsey

Prominent commentators -- among them Ilya Somin, Eric Posner, and Erwin Chemerinsky & Samuel Kleiner -- have defended the President's Deferred Action for Parents of Americans (DAPA) program as an exercise of the President's power of prosecutorial discretion.  I'm inclined to agree with their premises.  Given limited enforcement resources, the President is entitled to make decisions on enforcement priority, including by designating categories of non-enforcement based on a policy assessment of which violators are most morally deserving (or, put another way, least problematic).  True, the President cannot simply refuse to enforce a law across the board, as that would amount to suspending (dispensing with) the law, an action contrary to his duty to take care that the laws are faithfully executed.  But so long as the President continues to execute a law against some material number of violators, the fact that he does not execute it against another material category of violators is consistent with his prosecutorial powers and duties.

So, for example, the President's decision not to enforce the federal drug laws against people in states where their actions are legal under state law, while continuing to enforce the federal drug laws in other circumstances, seems defensible.  The key is that the President's decision does not change anyone's rights or otherwise alter any law; it is simply non-action.  Violating the federal drug laws remains illegal; but for now anyway, the executive branch is going to do anything about certain specified violations.

But that leaves me with the following questions about DAPA:

(1)  Suppose, through the actions of a vindictive ICE agent, a person covered by DAPA is slated for deportation.  Can that person seek a judicial remedy to block deportation?

(2) A well-respected immigrants' rights website, the National Immigration Law Center, states that "a person granted deferred action is considered by the federal government to be lawfully present in the U.S. for as long as the grant of deferred action status."  Is that statement correct?

(3)  Under DAPA, a covered person explicitly receives deferred status for three years.  That extends beyond the term of the current President.  Does DAPA purport to bind the next President?  If not, does the three year term have any legal purpose or explanation?

(4) Under DAPA, to receive the three-year deferred status a covered person must submit certain paperwork and pay a fee of around $400.  Does the President's power of prosecutorial discretion include the power to impose a fee to obtain it (in effect, to sell indulgences)?  Can the executive branch license violations of the drug laws upon payment of a fee in advance?

(5)  Upon application and payment of the fee, persons covered by DAPA receive a work permit and a social security number.  Does this convey on them a legal entitlement to work, or any other legal entitlement?  If not, is there any legal explanation for this process?

(6)  Although much of immigration law is reserved to the federal government, the states are allowed to some extent to treat persons in the country illegally differently from persons in the country legally.  Does qualification under DAPA change the way a state is allowed to treat the covered person (that is, must the state now treat them as "lawfully present")?

(7)  My understanding is that federal law limits the ability of private persons to discriminate against legal immigrants based on their immigration status (that is, e.g., employers cannot favor citizens over lawful aliens).  Does qualification under DAPA change the way a private person is allowed to treat covered persons (that is, is an employer barred from refusing to hire them)?

For DAPA to qualify as prosecutorial discretion, I think all seven questions must be answered "no." Otherwise, DAPA seems to be more than non-action.  I am not sure, however, that any of them can be answered "no," either as a logical or as a practical matter.  If they can be, it would be great for DAPA proponents to say so in unmistakable terms.

To be clear, DAPA may still be constitutional if it is an exercise of discretion conveyed by statutes.  But that is different from  it being part of the President's constitutional power to execute the law.


Lincoln: Slavery, Sovereignty, and Secession
Mike Rappaport

Recently, I gave a talk (along with colleague Maimon Schwarzschild) on Abraham Lincoln at the San Diego Law Library as part of their exhibit on the former President.  My talk was entitled “Lincoln: Slavery, Sovereignty, and Secession,” but unfortunately due to time constraints, it was mainly on slavery.

My main point about Lincoln is that his views on slavery were very “moderate” up until the point at which he issued the Emancipation Proclamation.  As a matter of policy, Lincoln favored ending slavery, but he wanted such emancipation to be gradual, compensated, popularly enacted, and followed by colonization.  In Lincoln’s defense, he believed that any stronger position would have been rejected by the American people and therefore this was the best that could be accomplished for the slaves.

By contrast, there were the abolitionists of the time – people who favored immediate emancipation of the slaves.  The abolitionists included William Lloyd Garrison, who believed the Constitution was a deal with the slavemaster devil, and Lysander Spooner, who believed that the Constitution forbade slavery.  But the groups associated with both of these men were considered extremists and represented only a small portion of the population.

As a matter of constitutional law, Lincoln believed that the Constitution allowed slavery in states that desired to have it and therefore did not allow the federal government to interfere with such slavery.  But he did insist that the Constitution allowed Congress to forbid slavery in the territories.  This was key to Lincoln, who believed that if slavery could be prohibited in the territories, the future states would be free ones.  And this would put slavery on the defensive and make compensation for emancipation from the rest of the nation affordable.

Lincoln was extreme about his moderate position, drawing a line in the sand as to prohibiting slavery in the territories.  For that reason, he strongly opposed the Dred Scott case (which would have made such prohibitions unconstitutional) and announced that he would not follow the case in future.

Ultimately, though, Lincoln ended up supporting immediate, uncompensated emancipation without colonization.  The circumstances of the war changed everything.  Lincoln could argue that emancipation was necessary for the war, an aim strongly supported in the North.  And so the Great Emancipator was born, coming to the position only slowly and over time.

Note: This blog post was originally posted at the Liberty Law Blog.  It prompted some controversy in the comments, which led me to add another post responding to those comments. 

David Bernstein & Ilya Somin: The Mainstreaming of Libertarian Constitutionalism
Michael Ramsey

David Bernstein (George Mason University School of Law) and Ilya Somin (George Mason University School of Law) have posted The Mainstreaming of Libertarian Constitutionalism (Law and Contemporary Problems, Vol. 77, No. 4, pp. 43-70, 2014 (Part of the Symposium on “Law and Neoliberalism”)).  Here is the abstract:

Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.

This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.

The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.


New Book: Edward Larson's The Return of George Washington: 1783-1789
Michael Ramsey

This is from late last year but I somehow neglected to mention it: Edward J. Larson (Pepperdine Law School) has this new book: The Return of George Washington: 1783-1789 (William Morrow 2014).  Here is the description from Amazon: 

Pulitzer Prize-winning historian Edward J. Larson recovers a crucially important—yet almost always overlooked—chapter of George Washington’s life, revealing how Washington saved the United States by coming out of retirement to lead the Constitutional Convention and serve as our first president.

After leading the Continental Army to victory in the Revolutionary War, George Washington shocked the world: he retired. In December 1783, General Washington, the most powerful man in the country, stepped down as Commander in Chief and returned to private life at Mount Vernon. Yet as Washington contentedly grew his estate, the fledgling American experiment floundered. Under the Articles of Confederation, the weak central government was unable to raise revenue to pay its debts or reach a consensus on national policy. The states bickered and grew apart. When a Constitutional Convention was established to address these problems, its chances of success were slim. Jefferson, Madison, and the other Founding Fathers realized that only one man could unite the fractious states: George Washington. Reluctant, but duty-bound, Washington rode to Philadelphia in the summer of 1787 to preside over the Convention.

Although Washington is often overlooked in most accounts of the period, this masterful new history from Pulitzer Prize-winner Edward J. Larson brilliantly uncovers Washington’s vital role in shaping the Convention—and shows how it was only with Washington’s support and his willingness to serve as President that the states were brought together and ratified the Constitution, thereby saving the country.

W. B. Allen comments here.


Michel Rosenfeld: A Comparativist Critique of U.S. Judicial Review of Fundamental Rights Cases
Michael Ramsey

Michel Rosenfeld (Benjamin N. Cardozo School of Law) has posted A Comparativist Critique of U.S. Judicial Review of Fundamental Rights Cases: Exceptionalisms, Paradoxes and Contradictions (John Bell and Marie-Luce Paris, eds., Rights-Based Constitutional Review – Constitutional Courts in A Changing Landscape (Edward Elgar Publishing, Forthcoming 2015)) on SSRN. Here is the abstract:

The aim of this chapter is to place the longstanding controversy concerning the US Supreme Court (USSCt) adjudication of constitutional issues, and in particular those pertaining to fundamental rights, in comparative context. Moreover, two separate benefits are sought through approaching this familiar subject through a comparative perspective: on the one hand, to allow the foreign reader to obtain a better grasp of American exceptionalism in this area: and, on the other, to afford US constitutionalists with an “outside” look into familiar territory regarding a judicial practice that was once almost exclusively American, but that has become virtually universally adopted since World War Two. Particular attention is given to the most contentious and divisive fundamental rights decisions of the USSCt, and comparison concentrates on the contrast between the centralized hierarchical Kelsenian model followed in much of Europe and the common law approach implemented by the USSCt. Several paradoxes and contradictions are examined in light of foreign constitutional adjudication. Finally, the chapter seeks to shed further light, based on comparative insights, on the tension between ordinary and judicial politics as well as that between morals, mores, law and politics in the context of constitutional adjudication.

Alison LaCroix: The Interbellum Constitution
Michael Ramsey

In the current issue of the Stanford Law Review, Alison L. LaCroix: The Interbellum Constitution: Federalism in the Long Founding Moment (67 Stan. L. Rev. 397 (2015)).  Here is the abstract: 

Today, the mechanism of the spending power helps to drive the gears of the modern federal machine. But early nineteenth-century constitutional debates demonstrate that the spending power is essentially a work-around, and a recent one at that—a tool by which Congress achieves certain political and legal ends while respecting the formal boundaries set by Article I and the Tenth Amendment. The “interbellum” period between 1815 and 1861 was enormously significant for American constitutional law, in particular the constellation of related doctrines concerning congressional power that we now place under the general heading of “federalism”: the spending power, the enumerated powers of Article I, and the anticommandeering principle of the Tenth Amendment. Political and legal actors in the early nineteenth century believed they lived in a long Founding moment in which the fundamental terms of the federal-state relationship were still open to debate. Constitutional scholars have mistakenly overlooked the constitutional creativity of the period. As a normative matter, I argue for an approach to modern constitutional interpretation that recognizes the ever-changing nature of the landscape of constitutional permissibility, and that offers documentary evidence of the precise contours of that change. Studying the evolution of the spending power over time, especially where the text itself remains constant, demonstrates that ideas about federal structure are not fixed. Therefore, constitutional federalism itself is not fixed—a particularly important insight in an area of constitutional doctrine that is dominated by originalist approaches.


USD Originalism Conference Today and Tomorrow
Michael Ramsey

USD's 2015 Hugh and Hazel Darling Foundation Originalism Works-in-Progress conference takes place today and tomorrow.  Here is the line-up (which I think might be our best ever):

Friday, February 20, 2015:

2:30 – 2:35  Welcome:   Dean Stephen Ferruolo

2:35 – 2:45   Opening Remarks:  Mike Rappaport (USD)

2:45 – 4:00  First Paper:  Richard Ekins (Oxford), The Enacted Constitution.  Commentator: Fred Schauer (Virginia);  Moderator: Larry Alexander (USD)   

 4:00 – 4:15      Break

4:15 – 5:30      Second Paper: James Pfander (Northwestern), The Contested History of Article III's Case-or-Controversy Requirement.   Commentator: Caleb Nelson (Virginia);      Moderator:  Steve Smith (USD)

Saturday, February 21, 2015:

 9:30 – 10:45    Third Paper: William Baude (Chicago), Is Originalism Our Law?                     Commentator: Matt Adler (Duke); Moderator: Mila Sohoni (USD) 

 10:45 – 11:00  Break

11:00 – 12:15  Fourth Paper: James Ely (Vanderbilt), The Contract Clause: Origins and Early Development.  Commentator: Michael McConnell (Stanford);  Moderator: Maimon Schwarzschild (USD)

 12:15 – 1:15    Lunch 

 1:15 – 1:30      Break

1:30 – 2:45      Fifth Paper: Ian Bartrum (UNLV), Two Dogmas of Originalism.                      Commentator: Larry Solum (Georgetown); Moderator: Bryan Wildenthal (Thomas Jefferson)

2:45 – 3:00      Break

 3:00 – 4:15      Sixth Paper: Christina Mulligan (Brooklyn), Founding-Era Translations of the U.S. Constitution.  Commentator: Jack Balkin (Yale);  Moderator: Laurie Claus (USD)

 4:15 – 4:30      Break

 4:30 – 5:45      Seventh Paper: David Moore (BYU), The Broader Founding and International Law.  Commentator: David Golove (NYU).  Moderator: Mike Ramsey (USD) 


Incorporation, Total Incorporation, and Nothing But Incorporation: The Essay
Chris Green

I have combined into an essay my posts responding to Kurt Lash's excellent book adopting an enumerated-rights-only reading of the Privileges or Immunities Clause.  The new version--with many fewer abbreviations!--is here. Please send me any comments you might have!

Leo Strine Jr. & Nicholas Walter: Originalist or Original
Michael Ramsey

Leo Strine Jr. (Government of the State of Delaware - Supreme Court of Delaware; Harvard Law School; University of Pennsylvania Law School) and Nicholas Walter (Wachtell, Lipton, Rosen & Katz) have posted Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History on SSRN. Here is the abstract:

Citizens United has been the subject of a great deal of commentary, but one important aspect of the decision that has not been explored in detail is the historical basis for Justice Scalia’s claims in his concurring opinion that the majority holding is consistent with originalism. In this article, we engage in a deep inquiry into the historical understanding of the rights of the business corporation as of 1791 and 1868 — two periods relevant to an originalist analysis of the First Amendment. Based on the historical record, Citizens United is far more original than originalist, and if the decision is to be justified, it has to be on jurisprudential grounds originalists traditionally disclaim as illegitimate.

Damon Root on Rand Paul and Judicial Restraint
Michael Ramsey

At Reason, Damon Root: Rand Paul and the Libertarian Case Against Judicial Restraint: Sen. Paul takes sides in a libertarian-conservative battle over SCOTUS and the Constitution (also covering some of the debates among Richard Reinsch, Greg Weiner and Randy Barnett previously noted).


Josh Blackman and Ilya Somin on Executive Enforcement Discretion (Updated)
Michael Ramsey

Josh Blackman and Ilya Somin have competing views of the district court decision in Texas v. United States enjoining the President's non-enforcement of the immigration laws.

Up to a point, I agree with Professor Somin:

[T]he [immigration nonenforcement] policy is little different than numerous other situations where the executive branch chooses not to enforce a variety of federal laws in particular situations, such as the de facto policy of not enforcing federal laws banning marijuana possession on college campuses. The latter actually affects a far larger number of lawbreakers than Obama’s new immigration policy does. Some 70% of Americans have violated federal criminal law and millions have also violated various federal regulations that carry civil penalties. Every administration chooses to pursue only a small fraction of these cases, and in the process effectively exempts large categories of offenders from any legal sanction.

But I am less sure about these observations: 

[The district court] claims that the administration’s new [immigration nonenforcement] policy creates “a standard of conduct” that “has the force of law” and is “clearly contrary to Congress’ intent.” He claims that “[t]he DHS cannot reasonably claim that under a general delegation to establish enforcement policies, it can establish a blanket policy of nonenforcement that awards legal presence and benefits to otherwise removable aliens.” In his view, the administration’s policy is “in effect, a new law.”

... [T]his reasoning fails because the administration’s decision does not actually have “the force of law” or legalize the status of previously illegal immigrants. While the administration has committed to a policy of not deporting those aliens who fall within the scope of the policy, it has not declared their presence in the US to be legal, nor given them any “benefits” that have the force of law (the benefits in question are primarily exemption from enforcement of federal laws banning the employment of illegal aliens). Both the acceptance of their presence in the US and the work permits can be withdrawn by President Obama or his successors at any time. By contrast, the executive cannot and does not have the power to revoke legal status that genuinely has the force of law, except perhaps in cases where Congress has specifically delegated the power to do so.

As the district court opinion puts it, in a passage I predict will be widely quoted:

Exercising prosecutorial discretion and/or refusing to enforce a statute does not also entail bestowing benefits.  Non-enforcement is just that -- not enforcing the law.  Non-enforcement does not entail refusing to remove these individuals as required by law and then providing three years of immunity from that law, legal presence status, plus any benefits that may accompany legal presence under current regulations.

Although I'm not an expert in this area, the district court's characterization of the policy seems more accurate here.  Unlike marijuana nonenforcement (on which I entirely agree with Professor Somin), the immigration nonenforcment does appear to me to convey affirmative benefits.  It allows covered persons the ability to work (which they would not otherwise have) and (at least under the executive branch's view of the matter) requires states to treat the covered persons as legally entitled to remain in and work in the United States on the same terms as legal immigrants.  It's true that these benefits can be withdrawn by executive order, but until they are, they are binding.  (Query: could an employer refuse to hire a person covered by the President's non-enforcement policy on the ground that the person is in the U.S. illegally?  My impression is that the answer is "no," because by the President's policy they are entitled to work in the U.S.  If that's correct, the policy goes beyond mere non-enforcement).

That's not to say that the executive action here is unconstitutional -- only that it has to be authorized by statute rather than resting just on prosecutorial discretion (which, as the district court says, is only non-action).

For more, see these articles by Professor Blackman: The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action and The Constitutionality of DAPA Part II: Faithfully Executing the Law.

UPDATE:  Josh Blackman has more here at NRO, plus also at NRO this from Andrew McCarthy.

Eric Posner has a different view here, which further confirms what is becoming the main point of disagreement: does the immigration non-enforcement order convey legal benefits?  Professor Posner says it does not.  But then he sort of acknowledges that it does, because it would [might?] preempt state law.  If the order changes (improves) people's legal status under state law, surely that conveys a legal benefit?


Michael Stokes Paulsen: The Commander in Chief Power to Target and Kill Americans
Michael Ramsey

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted Drone on: The Commander in Chief Power to Target and Kill Americans (38 Harvard Journal of Law and Public Policy 43 (2015)) on SSRN. Here is the abstract: 

The President of the United States, in his capacity as Commander in Chief in time of legally authorized war, possesses the constitutional power to target and kill specific individuals that he determines to be active enemy combatants engaged in lawful or unlawful hostilities against the United States. In targeting and killings such combatants, the President may use any and all appropriate weapons technologies available to him -- including drone technology.

Such enemy combatants might sometimes be, unfortunately, United States citizens. The constitutional power of the President to target and kill such citizen enemy combatants is no different from the power to target and kill enemy combatants generally.

This article examines this core proposition in the context of the paradigmatic case of the targeted killing of Anwar al-Awlaki, a U.S. citizen and al Qaeda operational commander, by drone attack in Yemen in 2011.


Greg Weiner vs. Randy Barnett on Natural Rights Adjudication
Michael Ramsey

At Liberty Law Blog, Greg Weiner: Who Are the Guardians of the Natural Rights Polity?  From the introduction:

There is no reason there cannot be a natural rights politics as opposed to a natural rights jurisprudence.

Rights are not inherently judicial claims. We are only accustomed to thinking of them that way. Consider that the Supreme Court was almost wholly silent on the Bill of Rights for much of its first century even though early political commentary (see the debates over the Sedition Act) is rife with references to it.

It might be healthier and, crucially, ultimately better for liberty if rights claims were to be politically resolved. There is substantial evidence that this is what prominent Framers, including Madison, had in mind.

Randy Barnett responds: The majoritarian fable.  From the core of the argument:

So tell me a story about how an individual denied the right to braid hair without an expensive and time consuming cosmetology licence can get her right vindicated in “the legislative process.” Tell me how some monks can get their right to sell a wooden box in which to bury the dead without being licensed funeral home directors can get their rights decided by “the rest of us.”

I don’t want proof or a report of an actual case. I just want Mr. Weiner to tell me a story about how it can possibly happen. What does this African American woman do who wants to braid hair for money? How does her right become part of the agenda of the state Republican and Democratic parties and their candidates for the state representatives or senators? How does she make “the rest of us” aware of her liberty being violated so they can vote Republican or Democrat accordingly? How does she get the public to place a greater weight on her lone right to pursue a harmless occupation than they do on the other policies advocated by Republicans or Democrats? When will “deliberate majorities” ever even hear her claim?

“The rest of us” were never asked our opinion about hair braiding or casket sales. Majorities in the state legislature never voted on the regulation beyond delegating their lawmaking power to administrative agencies or professional boards.


I know of only one way for an individual to assert her claims against administrative government workers and boards and panels. By bringing a lawsuit that is then decided by a genuinely neutral magistrate. Bringing suit is hard. Bringing suit is expensive (unless supported by a public interest attorney). But bringing suit is possible. It is only possible, however, in a legal system that recognizes the existence of a third co-equal branch of government called the “judiciary.” In a system that acknowledges that the “due process of law” includes the ability to get an independent magistrate to pass upon the reasonableness of a legislative or regulatory restriction of liberty so that it is within the “just power” of republican government.

This is why we need courts, why we need judges, and why we need lawyers.


Calvin TerBeek: Originalism's Obituary
Michael Ramsey

At his Balls and Strikes blog, Calvin TerBeek writes Originalism's Obituary.  From the introduction:

Originalism is facing an existential crisis.  Some of its leading proponents might not know it — might not want to admit it — but viewed from the outside it seems clear that the edifice of originalism, old and new, is crumbling.  To use Thomas Kuhn’s The Structure of Scientific Revolutions as a helpful analytical jumping-off point: the new methods of thinking about constitutional interpretation (i.e., original public meaning) were developed because the old methods (e.g., original intentions) were not up to the task of solving the “dilemma” of interpretation (neutral and objective criteria for judging), but instead have now thrown the “state of knowledge” (about the “best” theory of constitutional interpretation) into flux or crisis as views once deemed heretical or unforeseen (progressive results flowing from an originalist approach) have opened the field.  However, unlike Kuhn’s model for scientific knowledge, there will be no new originalist paradigm that emerges from this crisis.  That is, no one version of originalism will triumph to return the state of knowledge back to “normal” (originalist) theorizing. The originalist project has finally collapsed in on itself.

(One might see Kurt Lash's essay at Liberty Law Blog, noted yesterday, as something of a response).


Kurt Lash: Safe Harbor Originalism
Michael Ramsey

At Liberty Law Blog, Kurt Lash: Safe Harbor Originalism.  From the introduction:

Originalism’s success has resulted in a rapidly expanding body of scholarship by a richly diverse group of constitutional theorists, many of whom “tweak” the method in order to bring it within their preferred normative theory. This is the cost of success—everyone wants to play.

There are many ways to be an “originalist.” However, not all ways are originalist, and even those that are arguably originalist will not be equally accepted by practitioners of the method. If originalism is to maintain a degree of coherence as an interpretive option, its advocates are now pressed to define it, and to do so in a manner that distinguishes the method from its rivals while still leaving room for healthy exploration, disagreement, and development.

Thanks to the work of Professor Lawrence Solum, we have an easily understood, robustly theorized, and broadly accepted definition. Originalism claims that 1) the meaning of a text is fixed at the time of its adoption and 2) this constrains judicial application of the text. There may be other ways to define originalism, but any work that accepts Solum’s definition will be accepted as “originalist” by most academics, lawyers, and judges.

How does one go about determining the textual meaning that was fixed at the time of adoption? Once again, different scholars have adopted different methods. What follows is an originalist methodology that I believe all originalists accept as a properly originalist methodology. It has four basic steps, and to fall within the safe harbor, all four must be completed, and completed in order.

I agree with the first three, anyway.


Richard Re on Standing’s Lujan-ification
Michael Ramsey

At Re's Judicata, Richard Re: Standing’s Lujan-ification. Here is an excerpt:

Now consider Lujan. Written by Justice Scalia, that most famous devotee of rule-like law, Lujan synthesized prior standing precedent into a compact passage with an explicitly tripartite enumeration, two demarcated sub-points, and an absolutist lead sentence. Here it is, with some cites and alterations omitted:

The irreducible constitutional minimum of standing contains three elements: First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly. . . trace[able] to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court.” Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

This was a statement meant to be quoted and cited—and it has been. Here is a quick metric of this passage’s influence. Chevron USA v. Natural Resources Defense Counsel (1984) is widely recognized as among the most influential Supreme Court cases in recent decades. Westlaw reports that Chevron has been cited about 69,000 times, and the Westlaw headnote for Chevron’s famous two-part deference test has been cited about 5,600 times. By comparison, Westlaw reports that Lujan has been cited about 50,000 times, and the headnote for the passage quoted above has been cited a staggering 7,400 times. And that’s despite the fact that Chevron has been collecting cites for eight years longer than Lujan.

What has been the upshot of standing’s evolution from Baker to Lujan?

Another data point rejecting the proposition that Scalia has not been influential.  But, is it originalist?


Chris Green Was Right to Criticize Something I Said About the Equal Protection Clause
Andrew Hyman

Late last year, Professor Chris Green was kind enough to critique a forthcoming article of mine about the Equal Protection Clause (EPC). 

Chris’s strongest point was in opposition to my argument for the existence of “states' obligation to obey antidiscrimination requirements analogous to those Congress imposes on the rest of the federal government.”  After researching the matter further, and discussing it with others, I have to admit that Chris has a good point.

Although I have come around to Chris’s thinking on that particular point, I still firmly believe that the EPC would have only been a requirement about equal enforcement of whatever laws a state may have on its books, if the EPC had merely forbidden states to deny “the equal protection of its laws.”  That penultimate word of the clause is very important. 

Moreover, I still firmly believe that the word “protection” is broad enough to cover protection against any unjust discrimination whatsoever.   Likewise, the EPC together with the Enforcement Clause are broad enough to support all of the equality provisions of the Civil Rights Act of 1866, without any need for the Privileges or Immunities Clause.

So, I am sticking to most of my thesis, for which there is plenty of support, including pre-enactment evidence.  But I do admit that Chris made a very valid point about the alleged “states' obligation to obey antidiscrimination requirements analogous to those Congress imposes on the rest of the federal government.”  Another commenter also objected that such a thing would “contort” the EPC.  Mea culpa. 

Fortunately, I have come around in time to revise the forthcoming article of mine.  I believe that the EPC and the Necessary and Proper Clause together authorize Congress to enact provisions of law declaratory of equal rights that people should have within the jurisdiction of the states, short of enforcing those equality rights.  Enforcement is covered separately under Section 5 of the Fourteenth Amendment.  That enforcement power does not allow Congress to enforce whatever declarations it has made about equal rights, but rather only authorizes Congress to enforce the “equal protection” that the courts determine is an essential aspect of those declarations.  I feel confident that this reflects the original meaning of the EPC.

Ashutosh Bhagwat: Posner, Blackstone, and Prior Restraints on Speech
Michael Ramsey

Ashutosh Avinash Bhagwat (University of California, Davis - School of Law) has posted Posner, Blackstone, and Prior Restraints on Speech on SSRN. Here is the abstract: 

Judge Richard Posner recently asserted that the original understanding of the free speech clause of the First Amendment was to prohibit “censorship” – meaning prior restraints – but not subsequent punishments. Posner was following in the footsteps of many other eminent jurists including Justice Holmes, Joseph Story, James Wilson, and ultimately William Blackstone’s Commentaries on the Laws of England.

The problem is, this claim is simply wrong. Firstly, it misquotes Blackstone. Blackstone said that the liberty of the press meant only freedom from prior restraints; he never discussed speech. When one does examine the Speech Clause, it becomes quite clear that its protections cannot be limited to freedom for prior restraints. Most importantly, this is because during the Framing era, when speech meant in-person, oral communication, no system of prior restraints on speech was remotely possible or ever envisioned. So, if the Speech Clause only bans prior restraints, it bans nothing. A broader reading of the Speech Clause is also supported by its (admittedly sketchy) history, and by an examination of the political theory underlying the American Revolution. Indeed, not only is the Speech Clause not limited to banning prior restraints, a close examination of the historical evidence strongly suggests – though this issue cannot be definitively resolved – that a substantial portion of the Framing generation probably read the Press Clause more broadly.

What lessons can be learned from this? The first is a need for great caution in “translating” Framing era understandings into modern times, with our very different technological and cultural context. Second, when seeking “original understandings” of the Constitution, it is important to be aware that sometimes, no consensus existed. Indeed, the Framers may have given no consideration at all to specific issues. This indicates limits on the usefulness of the entire Originalist enterprise.


Ilya Somin on the Islamic State AUMF
Michael Ramsey

At Volokh Conspiracy, Ilya Somin, Some details of the Obama administration’s proposed authorization for use of military force against ISIS [Updated with link to actual wording of the proposal].  With this comment:

However, as I explained in my post commenting on Obama’s call for an ISIS AUMF in the State of the Union, an after-the-fact AUMF does not cure the administration’s unconstitutional actions in waging war without congressional authorization for some six months, nor its previous similarly unconstitutional war against Libya in 2011. More will be needed to reestablish the constitutional norm that the initiation of war requires congressional approval. As a first step, Congress should at least couple its ISIS AUMF with a resolution indicating that the president acted illegally when he failed to get authorization in advance, and emphasizing that future interventions must have such authority. Otherwise, there is a danger that courts and future executive branch officials might use the wars against ISIS and Libya as a precedent for the proposition that Congress has acquiesced to unilateral presidential initiation of war. Giving presidents the power to start wars on their own initiative is both unconstitutional and likely to have dangerous consequences.

My view is that the administration's request is tantamount to a concession that it does not have independent  authority for the ISIS/ISIL/IS project.  That's an important precedent in the right direction, even if it does not go as far as Professor Somin would like (and even though I think the president might have authorization from prior AUMFs).

Victoria Nourse on Legislative History
Michael Ramsey

Victoria Nourse (Georgetown University Law Center) has posted two interesting articles on SSRN.

The first is Elementary Statutory Interpretation: Rethinking Legislative Intent and History (Boston College Law Review, Vol. 55, pp. 1613-1658, 2014) on SSRN. Here is the abstract:

This article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts — legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act — their procedures. Once one accepts this position, we must rethink the very concept of legislative history. Legislative history is not a search for a mental state, behind the words, but a search for decisional context. We should give up talking about legislative history, replacing it with the far more helpful notion of legislative decision and statutory context.

Also this one: The Constitution and Legislative History (University of Pennsylvania Journal of Constitutional Law, Vol. 17, pp. 313-363, 2014). Here is the abstract:

In this article, the author provides an extended analysis of the constitutional claims against legislative history, arguing that, under textualists’ own preference for constitutional text, the use of legislative history should be constitutional to the extent it is supported by Congress’s rulemaking power, a constitutionally enumerated power.

This article has five parts. In part I, the author explains the importance of this question, considering the vast range of cases to which this claim of unconstitutionality could possibly apply — after all, statutory interpretation cases are the vast bulk of the work of the federal courts. She also explains why these claims should be of greater concern to a variety of constitutional theorists, particularly those who embrace theories of popular and common law constitutionalism, but as well to originalists.

In part II, the author considers the textualist arguments against the constitutionality of legislative history. Article I, Section 7 provides that any bill must pass the House and the Senate and be presented to the President for veto or signature. As a number of textualists have argued, legislative history is not passed by both houses or signed by the President. Call this the “bicameralism argument.” Her answer to the bicameralism argument lies in a constitutional text that statutory textualists seem to have forgotten: Article I, Section 5 gives explicit power to Congress to set its own procedures, a power that gives legitimacy to legislative history created pursuant to those procedures. In fact, new developments in statutory interpretation theory (decision process theory) suggest that, in some cases, the only way to resolve textual conflict is to consider legislative procedure.

In part III, the author considers a second prominent argument against the constitutionality of legislative history: non-delegation. Critics argue that Congress may not delegate the “legislative power” granted under the Constitution to members or committees, as only the entire Congress may constitutionally exercise that power. Call this the “non-delegation” argument. Again, her response is based on constitutional text: Article I, Section 5 specifically sanctions delegation to less than the whole of Congress; more importantly, there is no general norm against self-delegation stated explicitly or even implicitly in the Constitution. Finally, the author suggests that there is a certain inconsistency in the assertion of these claims: the non-self-delegation and bicameralism arguments can both be used to indict canons of construction, which textualists offer as the leading alternative to legislative history, but which have no supporting text comparable to Article I section 5 in the Constitution.

In part IV, she considers arguments that judges’ use of legislative history violates the separation of powers because it allows the legislature to exceed the bounds of the “judicial power.” This argument can rather easily be turned on its head: in the quotations offered at the beginning of this article, members of Congress argue that judges are exercising the “legislative power” when they rewrite statutes without considering legislative history. As has been argued at length elsewhere, the use of “adjectival” argument in structural controversies — relying upon the terms “legislative, executive, and judicial” — perpetuates a weak understanding of the separation of powers, and one that the Constitution’s own text belies. The separation of powers does not prevent recourse to legislative history; in fact, as the article explains, blindness to legislative history may create different kinds of structural risks — risks to federalism, rather than risks to the separation of powers.

Finally, in part V, the author concludes by suggesting that we should retire the strong form of the legislative history unconstitutionality argument, by which she means the claim that the constitution bars any and all legislative history. Instead, we should far more actively interrogate serious questions about the use of legislative history in particular cases. Can it really be wise — or even constitutional — for a judge to impose a meaning on an ambiguous statute with reference to the statements of a filibustering minority, or privilege some texts in ways that violate Congress’s rules? Fidelity to Congress, and the importance of Congress’s constitutional rules — what Francis Lieber once called the “common law” of the Congress — has yet to be theorized within this more pressing, but particular, sphere.

You've heard this before, but I can't help pointing out again that the squabble over text versus legislative history in statutory interpretation is an intramural argument among originalists (or, it would be so recognized if we were talking about the Constitution instead of statutes).  Legislative history is just another way to get at original meaning (or original understanding, if you prefer), as these articles make clear.

So, if you're not a constitutional originalist, you need either to explain why statutory originalism (which so many people just assume to be the right approach) is wrong, or you need to explain why constitutional originalism is different from statutory originalism.  I'm not saying that either can't be done, but they aren't done very often.


A Further Response to Richard Reinsch from Randy Barnett
Michael Ramsey

Randy Barnett continues this conversation with Richard Reinsch on originalism and natural rights: Protecting natural rights by policing the police power (with an excellent summary of his view of the police power and its limits).

Here is the rest of the chain (so far):

The Book of Judges (Reinsch)

Another defender of “judicial restraint” attacks a straw man (Barnett)

Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett (Reinsch)

We the People of the United States II: The Madisonian View
Mike Rappaport

In my last post, I argued that “We the People of the United States” is best understood as referring to a single people consisting of separate states.  It is not a single people in a single undifferentiated nation like France, but instead is a country that consists of individual states that are united together.

This interpretation of the preamble views it as adopting an intermediate view between the nationalist view of a single people in an undifferentiated nation and the states rights view of multiple peoples in multiple states.

If the preamble adopts an intermediate view, does it fit with the remainder of the Constitution and what specifically is that view?  The intermediate view of the preamble accords with the analysis of the Constitution adopted by James Madison in Federalist 39.  In that number, Madison was responding to critics who argued that the Constitution was a national document and should have been a federal one.  Madison wrote:

In order to ascertain the real character of the government, it may be considered in relation to the foundation on which it is to be established; to the sources from which its ordinary powers are to be drawn; to the operation of those powers; to the extent of them; and to the authority by which future changes in the government are to be introduced.

After analyzing the Constitution as to each of these aspects, Madison concludes:

The proposed Constitution, therefore is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

(For example, Madison argued that the foundation of the Constitution is federal, not national, because the Constitution was adopted individually by the people of the separate states.)

Thus, according to Madison, the Constitution does not fit into the traditional categories of either national or federal.  Instead, it is a new, mixed form of government.

Under my analysis of the preamble, the preamble accords with Madison’s view of the Constitution as a mixture of national and federal features.  This view of the preamble then gains support from its congruence with the remainder of the Constitution.  And it is no surprise that the preamble and the other constitutional provisions would both have this mixture, since they were produced by a convention that had to compromise on these matters.  The claims of nationalists and states rights theorists are therefore problematic – they ignore the necessary compromises that led to a middle path.

Eric Segall on Originalist Defenses of Overturning Same-Sex Marriage Bans
Michael Ramsey

At Dorf on Law, Eric Segall: Originalist Defenses of Overturning Same-Sex Marriage Bans: Really? From the introduction: 

It is official. We are all originalists now, and interestingly, at the same time, there are no real originalists left. I know this because a number of prominent originalists have suggested that the 14th Amendment, as originally understood, prohibits bans on same-sex marriage. If that is true, originalism can mean anything and everything.

And from later in the post:

I would venture to say that when academics like Jack Balkin, Randy Barnett, and Steven Calabresi make “implausible” originalist arguments, and when other smart folks drain originalism of most interpretive and normative force, it is a hollow victory for those who believe that originalism means judges should follow the principles embraced by the people who ratified the text that is at issue. If it is possible for people to earn the label "originalist" by identifying broad principles like equality, liberty, fairness, and protection of speech, and then apply apply those vague aspirations according to modern norms to reach results that would have shocked the ratifiers, then they are definitely embracing what Balkin calls "living originalism." I am perfectly okay with that moniker as a description of these folks but I am pretty sure most self-identifying originalists would protest (perhaps too much).

And in conclusion:

But, my instinct is that the use of broad principles coupled with selective use of history (which almost always supports both sides, e.g., Heller), does not solve the real problem which is that, as Professor [Stephen] Sachs says, a sincere originalist can embrace virtually any use of those principles--which is exactly why noted liberal William Eskridge and noted conservatives can agree that same sex-marriage bans can be overturned by judges based on “originalism.” Since no one living in 1868 ever thought that could be true, I have no idea what that means other than we are all originalists now or none of us are. The difference won’t matter to the results judges reach (or likely to anyone outside academia) one bit.


We the People of the United States I: One People in a Country of Distinct States that are United
Mike Rappaport

One of the key arguments made by constitutional nationalists is that the Constitution provides that “We the People of the United States . . . do ordain and establish this Constitution.”  The idea is that a single people throughout the country as a whole established the Constitution and therefore sovereignty resides at the national level in that people.  Moreover, this national sovereignty negates any inferences that might otherwise follow from the idea that the Constitution consists of a compact of states.  While this is certainly one interpretation of this language, it is certainly not the only one.  And here I want to suggest an intermediate understanding – one that is in between national and states rights sovereignty.

We the People of the United States has two concepts in it: (1) the People and (2) the United States.  Each of those ideas has two possible interpretations.   The People might refer either to a single people of the nation or to the separate peoples of the different states.  Similarly, the United States might refer to a single national country – as France does – or it might refer to a country that consists of multiple states.  In the latter case, the meaning of the United States would be similar to the meaning of United Nations – an organization that consists of multiple different nations.

The nationalist view works best if both of  these concepts have the nationalist interpretation – if it is one people and a single national country.  The states right view works best if both of these concepts have the compact between states interpretation – if it is multiple peoples and a country consisting of multiple states.

While it is possible to view both concepts in either way, I believe that the stronger interpretation of people is the national view and the stronger interpretation of the country is the states view.

We the People of the United States is best understood as referring to a single people.  After all, if the Framers had intended for the Constitution to reflect the actions of multiple peoples, it could have easily provided “We the Peoples of the United States.”  But it does not say that.  The better reading is that it establishes a single people.  Also supporting this conclusion is the Tenth Amendment, which says that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The United States, however, is best understood as referring to a country consisting of multiple states.  The Constitution uses the term as a plural noun.  The Constitution provides that “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”  This suggests that the United States was referring to a group of individual states that were united together.

It is sometimes said that it matters that the Constitution used the term the United States rather than listing the 13 states in the way that the Articles of Confederation did.  An early draft of the Constitution, produced by the Committee of Detail, provided "We the people of the States of New Hampshire, Massachusetts . . .  do ordain, declare, and establish the following Constitution for the Government of Ourselves and our Posterity.”

While this language was changed, it is likely that it was not changed for a substantive reason.  Instead, listing the individual states would have been a problem if some of the original 13 did not ratify (as was the case initially with both North Carolina and Rhode Island).   Under the plural understanding of the United States, We the People of the United States pretty much means the same thing as “We the People of the States of New Hampshire, Massachusetts, etc.”  In both cases, there is a single people consisting of individual states that are united together.

In my next post, I will discuss some of the implications of this analysis of the Constitution’s language.

Ronald Turner: A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education
Michael Ramsey

Ronald Turner (University of Houston Law Center) has posted A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education (62 UCLA L. Rev. Disc. 170 (2014)) on SSRN. Here is the abstract:

How would Justice Antonin Scalia, an avowed and prominent originalist, have voted if he were a member of the U.S. Supreme Court at the time of the Court’s seminal 1954 decision in Brown v. Board of Education? In a public appearance Justice Scalia stated that he would have voted with Justice John Marshall Harlan, the lone dissenter from the Court’s 1896 validation of the separate-but-equal doctrine in Plessy v. Ferguson. Additionally, in his recently published book, Justice Scalia stated that Justice Harlan’s dissent in Plessy is “thoroughly originalist” and, in a 1990 dissenting opinion, noted that Plessy was “upheld only over the dissent” of Justice Harlan, “one of our most historically respected Justices.” This Essay examines and criticizes Justice Scalia’s reliance on Justice Harlan as iconic authority for the proposition that Brown can be squared with Justice Scalia’s original public meaning variant of originalism.

And from the core of the argument (footnotes omitted):

"[L]ike most of his contemporaries, Harlan believed in the centrality of race and in the legitimacy of racial thinking. . . . Although Harlan was highly unusual in the courage, integrity, and decency he showed in racial matters, he nonetheless remained a person of his time.” He joined the Court’s pre-Plessy decision holding that a state criminal law’s penalty enhancement for adultery and fornication engaged in by black-white couples did not violate the Equal Protection Clause. And, three years after Plessy, Justice Harlan wrote the Court’s opinion in Cumming v. Richmond Board of Education.  In that case, the Court held that a county school board did not violate the Equal Protection Clause when it closed an all-black high school and continued to operate a high school for whites. The school board’s “separate and unequal scheme” was deemed to be reasonable and therefore constitutional.

In light of Harlan’s views on white superiority and his prior rulings, what does Justice Scalia mean when he says that he would have voted with Justice Harlan in Plessy and characterizes the Harlan dissent as “thoroughly originalist”? What is originalist about Justice Harlan’s dissent? One possibility is that Justice Scalia agrees with Justice Harlan that the issue of the constitutionality of state mandated racial segregation in railway cars concerned the civil but not the social rights of African Americans. If Justice Scalia does not recognize the Reconstruction-era distinction between civil rights and social rights, the originalist ground for disregarding the views of that day and time remains unclear. If he is cognizant of and accepts the civil-social distinction, he must conclude that attending a desegregated school is a social, and therefore not a constitutionally protected, right.

UPDATE:  The article is also available on the UCLA Law Review website, here.

Thanks to Michael Perry for the pointer.


Samoan Citizenship on Monday
Michael Ramsey

On Monday the D.C. Circuit (Silberman, Sentelle, and Brown -- as high-powered a panel as one can draw) will hear arguments in Tuaua v. United States, the Samoan citizenship case in which I joined a law professors' amicus in support of the plaintiff.  My prior discussion is here and here.  Briefly, the issue is whether people born in American Samoa, a U.S. territory, are U.S. citizens at birth under the Fourteenth Amendment.  Oddly, a statute says they are not, but we think the Constitution says they are ("All persons born ... in the United States and subject to the jurisdiction thereof, are citizens of the United States ...").  Somewhat like Noel Canning and recess appointments, the case pits what I believe to be a powerful originalist/textualist argument against a longstanding but unexamined assumption.

At Just Security, Steve Vladeck has an overview of the case and discusses a different amicus (this one, by various academic luminaries including Gary Lawson, addresses the Insular Cases, on which the government relies; the brief I joined addresses the original understanding of citizenship in the Fourteenth Amendment).


Richard Reinsch Replies to Randy Barnett
Michael Ramsey

Continuing this discussion, Richard Reinsch has this post at Liberty Law Blog: Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett.  The core of the response is pretty much summed in this sentence:  "So if judges, on the basis of a robust, natural-rights-protecting Privileges or Immunities Clause, can nullify state laws conflicting with said rights, we still need to know how judges will identify these rights."  And in conclusion: 

Justice Kennedy has said that prohibitions on the legal recognition of gay marriage are basically a pretextual basis for discrimination. He is dealing, in effect, with bigots all the way down. Is Kennedy right? If so, then aren’t we right back to the point I made in my initial post: ever new dimensions of liberty arise, and a wise justice knows of their substance.

We are told that a philosophy of judicial engagement will not lead to dueling natural rights jurists usurping republican government. I won’t believe this until they tell me what rights they see.

Sean Francis Bigley: The Constitutionality of the State Secrets Privilege
Michael Ramsey

Sean Francis Bigley (Legal Aid Foundation of Los Angeles) has posted The Constitutionality of the State Secrets Privilege: The Reynolds Privilege in Originalist Context on SSRN. Here is the abstract:

The following essay analyzes the state secrets privilege in its present incarnation, an evidentiary privilege capable of causing pre-discovery dismissal, in order to determine whether it can be reconciled with the original meaning of the Constitution. Part I traces the judicial origins and explanations of the privilege, in order to define its scope and effects at present. Part II discusses the textual, structural and historical arguments in favor of the constitutionality of the present incarnation of the state secrets privilege. As will be explained later, the constitutional text permits, implicitly, the use of the state secrets privilege, in its capacity as an adjunct to the executive power. Second, the constitution’s structure necessitates the existence of such a privilege. The nature of the judicial and legislative branches, confronted with the exigencies of statecraft, especially in light of the shortcomings of the Articles of Confederation, required a unitary executive capable of controlling and prioritizing information implicated by matters of foreign affairs, even by restricting the flow of information to Congress and the Courts. Finally, presidential practice, judicial acquiescence and the understandings of the framing generation augur for the privilege’s constitutional legitimacy. When judges have confronted its exercise, they have, by and large, abdicated any ability to countermand it. Rather, they have tied its use to two sources, the Anglo-American common law of evidence and the structural position of the executive within the constitutional framework. This article analyzes the latter source, to show that courts are correct to say that the privilege “performs a function of constitutional significance.”


Frederic Bloom & Nelson Tebbe: Countersupermajoritarianism (UPDATED: Larry Solum Responds)
Michael Ramsey

Frederic Bloom (University of Colorado Law School ; Brooklyn Law School) and Nelson Tebbe (Brooklyn Law School) have posted Countersupermajoritarianism (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation.

In this Review, we press two main arguments. First, we contend that McGinnis and Rappaport’s core thesis sidesteps critical problems with elevated voting rules. We also explain how at a crucial point in the book — concerning Reconstruction — the authors trade their commitments to supermajoritarianism and formalism away. Second, we broaden the analysis and suggest that constitutional change can and should occur not just through formal amendment, but also by means of social movements, political mobilizations, media campaigns, legislative agendas, regulatory movement, and much more. Changing the Constitution has always been a variegated process that engages the citizenry through many institutions, by way of many voting thresholds, and using many modes of argument. And that variety helps to make the Constitution good.

UPDATE:  At Legal Theory Blog, Larry Solum has extensive critical comments.


My Response on the Boehner/Netanyahu Invitation
Michael Ramsey

At Constitution Daily, Nicandro Iannacci has a good overview of last week's blog-driven constitutional debate regarding Prime Minister Netanyahu's address to Congress: An invitation to constitutional conflict? (surveying the views of David Bernstein, Peter Spiro, Seth Barrett Tillman (on this blog), Gerard Magliocca, Ryan Scoville and me). 

In this post I want to briefly respond to Seth Barrett Tillman's views on the other side.  To recap, my view is that (a) Congress lacks an Article I, Section 8 power to receive foreign diplomatic agents, at least absent the President's approval; (b) the President has diplomatic power from Article II, Section 1's vesting of executive power; (c) moreover, specifically as to this situation, the President has exclusive power to receive ambassadors and other public ministers; and (d) all this is confirmed by George Washington's conduct as President, as he claimed exclusive power to deal with representatives of foreign nations.

Professor Tillman principally takes issue with points (a) and -- especially -- (c):

“Public minister” in everyday modern American-English might extend to all foreign government officials. However, as I understand it, back in 1788-1789, the language “other public Ministers” extended to diplomatic officials having lesser status or rank than “Ambassadors”. That is (I suspect) the reason “public Minister” follows “Ambassadors” in Article II, Section 3. There are further diplomatic officials having even lower status than “public Ministers”; they are called “consuls”. See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power); Article 3, Section 2, Clause 1 (extending the judicial power to “Ambassadors, other public Ministers and Consuls”); Article 3, Section 2, Clause 2 (same). ...
As an abstract matter, the answer to the original query should be resolved as a competition between two sets of implied powers: on the one hand, the President’s power to act as the sole channel of official communications between the national government and foreign powers, and, on the other hand, Congress’ power to inform itself and to maintain exclusive control over access to its physical facilities.
On the Article II, Section 3 point, I agree that "public minister" was sometimes used at the time in a technical way to refer to lesser diplomatic officials.  But it would be odd -- to the point of incoherence -- to use it this way in the Constitution, so that the protections accorded ambassadors and lower ranking diplomats did not also encompass other high-ranking diplomats.  I think Article III, Section 2 cuts in exactly to opposite way from Professor Tillman.  Consider, in this regard, its grant of original jurisdiction for cases affecting "Ambassadors, other public Ministers, and Consuls" [the latter being very low ranking diplomats].  It seems wholly implausible that the Constitution would give the Supreme Court original jurisdiction over cases involving consuls but not over cases involving a nation's foreign minister acting in a diplomatic capacity, since the point was to put the most sensitive cases directly to the Court.  Rather, the list seems clearly designed to encompass all representatives of foreign nations, of whatever rank.  The reception clause omits consuls (because they rank too low for the President to be bothered with them), but in other respects it is parallel: all major diplomatic representatives are received by the President.  It would make no sense to give the President an exclusive power and duty to receive mid-level diplomats but not high ranking ones. 
Rather, I think "minister" was used generally to mean a diplomatic representative of whatever rank. Ambassadors were called ministers -- hence the "other" in "Ambassadors and other public Ministers").   Diplomatic representatives ("ministers")  who were not ambassadors -- whatever their status -- were "other" ministers.  And reading the clause to mean "ambassadors and other diplomatic representatives" makes perfect sense of both the reception clause and the original jurisdiction clause, conveying on the President (and, in a different respect, on the Court) full power in matters concerning diplomatic representatives of whatever description.  So while there may be a possible narrow reading, there is also a possible broad reading, and the broad reading is the only one that makes sense in the context of the reception clause (and the original jurisdiction clause).
Finally, as to Congress' power, I agree that Congress generally may have inherent power to inform itself about matters related to its enumerated powers (derived from Parliament's power, I assume).  But once the communication is not just with an ordinary person but with the representative of a foreign nation, it's a different matter.  Relations with foreign nations are executive in nature, as described by Montesquieu and Blackstone, among others.  I would be fairly surprised if Parliament had thought it had power to communicate with representatives of a foreign nation over the king's objection.  Thus unlike ordinary information seeking, such communications are not a traditional inherent power of a legislature; for Congress to have them, they would have to be granted expressly.  Perhaps individual members of Congress may communicate individually and informally on their own behalf, but an appearance before Congress as a whole, formally assembled, is an official act of Congress, not the private act of a member, and so requires a specific constitutional source of power.


Natural Rights, Substantive Due Process and Originalism
Michael McConnell

[Ed: For this guest post we welcome Michael W. McConnell, the Richard & Frances Mallery Professor at Stanford Law School, Director of the Stanford Constitutional Law Center, and Senior Fellow at the Hoover Institution.  This is a comment on the exchange between Richard Reinsch and Randy Barnett, noted here.]

Originalists should beware of any claim that substantive due process has roots in natural rights jurisprudence from the founding period. To our founders, the social compact was an exchange. Certain natural rights were relinquished in exchange for a more effectual protection for the natural rights which were retained (plus positive rights). The only way to know what rights were relinquished and what rights were retained is to examine the terms of the Constitution (and the relevant state constitution). Substantive due process, by contrast, posits that some (unspecified) set of rights are so fundamental that they cannot be relinquished. It is not logically possible to treat “natural rights” as congruent with “substantive due process rights” because this would render the social compact unintelligible.

That is why defenders of the Constitution said a bill of rights would be harmful. The enumeration of some natural rights would, by the expressio unius principle, relinquish the others. If natural rights may be relinquished by inference, they surely may be relinquished by explicit legislation that comports with constitutional allocations of power. The founders believed that natural rights would be protected by a combination of a carefully limited enumeration of powers and a robust republican form of government.

The Ninth Amendment was Madison’s solution to the expressio unius problem. Because of the Ninth Amendment, it would be a mistake to assume that because a subset of natural rights were expressly enumerated, the others were denied or disparaged. But this did not transmute unenumerated natural rights into constitutional rights. They remained natural rights, which would control only when specific, properly enacted positive law did not abrogate them. Unenumerated natural rights have the same legal status they had before enactment of the bill of rights.

I will not multiply citations of authority, but this understanding of natural liberties finds corroboration in the impeccable authority of the transmittal letter from the Constitutional Convention to the Congress on September 17, 1787: “Individuals entering into society, must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstance, as on the object to be obtained.” In other words, in the making of a constitution, the people “give up” a share of their natural liberties “to preserve the rest.” Which rights are given up and which are preserved is a political choice, dependent on circumstance and constitutional objectives, made through constitution drafting and subsequent legislation.

Our founders believed in natural rights. They also believed that natural rights were trumped by specific and authorized positive law. The notion that substantive due process is a modern version of natural rights theory is historically inaccurate.

Lawrence Solum: The Fixation Thesis
Michael Ramsey

Lawrence B. Solum (Georgetown University Law Center) has posted The Fixation Thesis: The Role of Historical Fact in Original Meaning on SSRN.  Here is the abstract:      

The central debate in contemporary constitutional theory is the clash between originalists and living constitutionalists. Originalism is the view that the original meaning of the constitutional text should constrain or bind constitutional practice—paradigmatically, the decision of constitutional cases by the United States Supreme Court. Living constitutionalists contend that the content of constitutional law should evolve over time in response to changing values and circumstances. One of the central questions in this debate is over the question whether the meaning of the constitutional text is fixed or changeable. This essay makes the case for the Fixation Thesis—the claim that the linguistic meaning (or communicative content) of the constitutional text was fixed when each provision was framed and ratified. Although the Fixation Thesis is a basic assumption of almost every version of originalism or textualism, it has never been the explicit focus of an extended examination and defense. This essay remedies that lacunae by providing a precise formulation of the fixation thesis, making the affirmative case for fixation, and answering potential objections. The most important claim made by the essay is that the Fixation Thesis is entailed by our common sense understanding of how communication works. Communicative content is created by using conventional semantic meanings (fixed by linguistic practices at the time words are used) and context (which is fixed by the understanding of author and reader at the time a writing is created).

The essay proceeds in five steps. Part One clarifies the Fixation Thesis by situating it in the content of contemporary debates about originalism. Part Two states the affirmative case for the fixation thesis and articulates several versions of the argument corresponding to different members of the originalist family of constitutional theories. Part Three provides additional clarification and answers objections. Part Four examines rival theories of constitutional meaning that deny fixation. Part Five explores two examples, “cruel and unusual punishment” and “privileges or immunities of citizens of the United States.”

Professor Solum presented an earlier version of this paper at the University of San Diego Originalism Works in Progress Conference earlier this year.  He's too modest to say it on his blog, so I will: Highly Recommended.  Download it while it's hot!