Nelson Lund & Adam Winkler: The Second Amendment
Michael Ramsey

Nelson Lund (George Mason University School of Law) and Adam Winkler (UCLA School of Law) have posted The Second Amendment (National Constitution Center, Interactive Constitution) on SSRN.  Here is the abstract:      

The National Constitution Center asked two professors — one nominated by the Federalist Society and one nominated by the American Constitution Society — to discuss the meaning of the Second Amendment. The exchange, which appears on the Interactive Constitution web site, begins with a co-authored statement that articulates the principal points of agreement between the two contributors. It is followed by individual statements addressing several issues on which the contributors disagree.

I like the format.  Bonus: short.


Is the TPP Unconstitutional?
Michael Ramsey

With the Trans Pacific Partnership (TPP) reportedly signed, it's time to ask whether it is (or rather, will be once approved) constitutional.  I think this is really difficult question for originalists.

In my view, under the Constitution's original meaning, the TPP is unconstitutional.  While I recognize that there are respected commentators on the other side, I don't think it's even a close question.  The TPP will be submitted for approval by majorities in both houses of Congress, but not for two-thirds approval by the Senate.  The Constitution, however, does not provide for this method of approval.  Treaties must be made with the advice and consent of the Senate, provided two-thirds of the Senators present concur.  The framers deliberately made it difficult to make major international commitments because they did not want such commitments undertaken without broad nationwide support.

The framers had seen the issue first hand.  In 1785, John Jay suggested, and the Continental Congress agreed, that the U.S. should propose a deal with Spain by which the U.S. gave up its claims to free navigation on the Mississippi River for 25 years in return for Spanish concessions elsewhere.  It actually wasn't a bad idea -- the U.S. wasn't in a position to insist on free navigation in 1785, although in 25 years, exactly as Jay foretold, it was in a much stronger position.  Nonetheless, the Southern states, many of which claimed land bordering the Mississippi, were enraged and vowed to block the treaty with Spain that Jay signed.  And they did, because the Articles of Confederation required a supermajority of states in Congress to approve treaties.

Two years later at the constitutional convention, the delegates could have drawn one of two conclusions.  First, they might have thought the failed Spanish treaty showed the problems with a supermajority requirement: a minority could block a good deal.  Or, second, they might have thought the failed Spanish treaty showed the importance of a supermajority requirement, to prevent deals made by a bare majority that did not command broad acceptance.  Obviously, they thought the latter, because they carried over the Articles' supermajority requirement into Article II, Section 2 of the new Constitution (while abandoning the Articles' supermajority requirement in other areas, including declaring war).  And they chose wisely, because the issue came up repeatedly in the Virginia ratifying convention.  Virginia, still sore over the episode of the Spanish treaty, might well not have ratified the Constitution without a supermajority approval for treaties; the Virginia anti-federalists wanted an even stronger supermajority provision.

Given this background, it's preposterous to suggest that all one needs to do is call a major international agreement something other than a treaty and the supermajority requirement disappears, magically replaced by a simple majority in Congress.  It's true that arguably minor agreements can be made by the President on his own authority as executive agreements, and that even major agreements can be made by the President on his own authority if they are nonbinding political commitments.  But the TPP is neither: it is a major binding agreement.  The Constitution's original meaning accordingly calls for supermajority Senate approval, which the TPP is not going to get.

But that's not the end of the story.  In the modern era, trade agreements have repeatedly been approved by a simple majority of Congress rather than a supermajority of the Senate.  NAFTA and the WTO are the most obvious examples, though it's also true of a host of bilateral trade agreements with countries around the world.  Almost the entire network of U.S. trade agreements is premised on the idea that simple majority approval is constitutionally sufficient. Although some commentators have objected, it's clear that the executive branch and overwhelming majorities of the legislative branch think there is no constitutional problem.

The issue has not been definitively tested in court (the key case was dismissed for lack of standing and never reached the Supreme Court).  Suppose, though, the Court had ruled NAFTA constitutional, despite the original meaning.  Originalists would be divided.  Some would say that the law is defined by the Constitution, whatever Justices may say.  Others (including me) would say that judicial precedent is also binding, at least to some extent.

Suppose one is an originalist who generally believes in following non-originalist judicial precedent at least when it is directly on point and when it is the foundation of substantial modern practice.  The TPP situation is different because there is no judicial precedent.  But the non-judicial precedent -- the practices of the political branches with respect to this exact issue -- is very strong.  In my article on custom in constitutional law -- in which I was very critical of arguments based on custom -- I nonetheless used congressional-executive trade agreements as an example of the strongest possible version of a custom-based argument.  If one believes in custom-based justifications at all, I said in effect, one should accept this custom.

So that is the originalist puzzle of the TPP.  If you accept non-originalist judicial precedent, do you also accept non-originalist non-judicial precedent?  (If you don't even accept judicial precedent, it's an easy call).  If so, then the TPP appears to be constitutional, despite its divergence from the original meaning.

(As an aside, the other main objections to the TPP -- that it was negotiated in secret and that it will faced a streamlined approval process in which amendments are not permitted -- seem without constitutional foundation.  The U.S. negotiated treaties in secret from the outset, including the 1794 Jay Treaty, and while that was sometimes controversial no one made a plausible constitutional argument against the practice at the time and it's unclear even on what clause that argument could rest.  As to the so-called "fast track" approval process, Congress has constitutional power to establish its "Rules of Proceedings" (Art. I, Sec. 4) without limitation.  The process may be a bad idea, but the Constitution does not seem offended.)


What it Means to be "Subject to" American Power
Andrew Hyman

In an otherwise informative post, Chris Green recently remarked that the Citizenship Clause of the Fourteenth Amendment “applied to anyone subject to the jurisdiction of the United States, going beyond the citizenship declaration of the Civil Rights Act of 1866, which merely applied to those not subject to foreign power….”  But I disagree that the Citizenship Clause abandoned this distinction embodied in the 1866 Act. 

As I mentioned previously, Congress re-enacted its 1866 citizenship declaration verbatim in 1870, after the Fourteenth Amendment had been adopted in 1868.  That’s hardly what Congress would have done if they thought the Fourteenth Amendment went beyond the 1866 Act’s citizenship declaration.

Moreover, the citizenship declaration in the 1866 Act was consistent with U.S. citizenship for children of foreign subjects.  The bill’s lead author, Senator Lyman Trumbull, was asked in 1866 whether the 1866 Act would “have the effect of naturalizing the children of Chinese and Gypsies born in this country?”  Trumbull replied: “Undoubtedly. ... [T]he child of an Asiatic is just as much a citizen as the child of a European.”  Thus, merely being a foreign subject did not preclude birthright citizenship under the Civil Rights Act of 1866, but being “subject to any foreign power” did.

During debate and discussion of the proposed Fourteenth Amendment, Senator Jacob Howard stated that the Citizenship Clause was “simply declaratory of what I regard as the law of the land already,” i.e. the law laid out in the Civil Rights Act of 1866.  Other Senators, such as Reverdy Johnson of Maryland, confirmed this connection even more explicitly: “Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign power…shall be considered as citizens of the United States.”  Evidently, the intent behind the Citizenship Clause was not to abandon birthright citizenship ineligibility for people who are subject to a foreign power. 

It is true that the pertinent language of the Civil Rights Act is different (and wordier) than that of the Fourteenth Amendment, but that is precisely why the Civil Rights Act can help us, by indicating the sense in which words are used in the Fourteenth Amendment.  One critical word they have in common is "subject."  According to one sense of this adjective, being “subject to” something means to owe it allegiance, and it is no coincidence that the topic of allegiance came up repeatedly during congressional discussion of citizenship in 1866.  I do not believe that either foreign diplomats or illegal/undocumented immigrants can owe allegiance to American power, especially as the concept of allegiance was understood in 1868 when the Fourteenth Amendment was adopted.  In any event, allegiance is baked into the Citizenship Clause, and is indispensable to a proper interpretation of that clause.

John McGinnis on Politicizing the Supreme Court
Michael Ramsey

At Liberty Law Blog, John McGinnis: Don't Further Politicize the Court (responding to this post by Rick Hasen).  From the conclusion:

Hasen is not making a serious argument of constitutional theory. He  just wants politics completely to replace law at the Court in politically consequential cases.  He never considers the costs of making the Court an even more politicized body. In an article with Nelson Lund,  I focused on some of the substantial dangers:

[An openly political] mode of judging has long term costs – costs that the Justices can impose on future generations with relative impunity. If constitutional debates about contentious issues of the day become simply politics by other means, the Constitution will have failed in one of its primary purposes – to create a framework by which disputes are authoritatively and predictably settled without simply replicating the strong moral and political disagreements that lead to the need for such rules in the first place.  When the Court refuses to resolve such disputes by resorting to settled legal rules, and instead injects its members’ personal ideological preferences, it sharply reduces the value of this settlement function. Other politicians, moreover, and occasionally even the people themselves, will come to recognize that the Court is engaging in ordinary politics while exempting itself from the mechanisms of political accountability.

Just as the nation state can debase its currency through excessive debt, so a constitutional democracy can degrade its fundamental rule of law though politicization of its judiciary. Hyper-lawlessness no less than hyperinflation can dissolve our republican bonds.


Ed Whelan on David Cohen on Bills of Attainder
Michael Ramsey

At Philly.com, David S. Cohen (Drexel): Congress Violates Constitution with Planned Parenthood Vote.  The core of the argument:

Though no one is talking about it, this most recent dust-up over federal funding for Planned Parenthood is very clearly an example of an unconstitutional bill of attainder: Congress is singling out Planned Parenthood and punishing the organization for allegedly improper and illegal actions.

More specifically, a bill of attainder has to meet three legal requirements: The law has to "determine guilt and inflict punishment," it must act "upon an identifiable individual," and it must do so "without provision of the protections of a judicial trial." All these requirements are met here.

At NRO, Ed Whelan is a little skeptical:

Cohen asserts, without citing any authority, that “removing Planned Parenthood’s federal funding … is a clear instance of punishment.” Oh, really?? So discontinuing a federal subsidy is punishment? That’s quite an extraordinary claim—one that would seem to call for some actual argument in support.

Cohen may be right that the Court would hold that corporations have protections against bills of attainder. But he seems not to understand that the proposition that a corporation is a legal person is not equivalent to the proposition that a corporation is an individual. In any event, what counts as punishment for a corporation isn’t easy to extrapolate from what counts as punishment for an individual. 

(See also his followup here, noting that the Second Circuit rejected a similar attainder argument in the ACORN litigation, reversing a district court that had accepted it).

The issue illustrates nicely the basic difference between originalism and living constitutionalism.  Under originalism, we would investigate the actual practices of the eighteenth century to understand whether denying funding in this sort of context (that is, in response to alleged bad acts) counts as attainder.  (I'd be pretty surprised if it did, but the key is you can't know without looking).  Under living constitutionalism, Professor Cohen can make his argument, and we will agree or disagree based on our policy preferences (and the matter will eventually be resolved by judges based on their policy preferences).  Which system is better is the core of the debate.  Some people say putting the choice this starkly oversimplifies, but in this case I think it doesn't.


John Harrison: Legislative Power and Judicial Power
Michael Ramsey

John C. Harrison (University of Virginia School of Law) has posted Legislative Power and Judicial Power (Constitutional Commentary, forthcoming) on SSRN.  Here is the abstract:      

There are two possible accounts of the difference between the legislative and judicial powers granted by the Constitution and each has surprising implications. According to one, the difference is purely between two different government functions, making legal rules and applying them. If that is correct, then the legislative power can accomplish any legal result the judicial power can, but not vice versa (putting aside constitutional limits on the legislative power that do not result from its separation from judicial power). According to the other, the two powers differ because only the judicial power may operate on certain legal interests. If that is correct, the structural difference between the two powers depends on differences among the legal rules being made or applied, not the functions of government institutions. That understanding of the distinction underlay 19th century vested rights doctrine and underlies the Supreme Court’s current doctrine that limits Congress’ power to undo final judgments. Although the wholly structural understanding of the two powers may seem to make their separate vesting in independent institutions pointless, it does not, and not only because constitutional restrictions limit American legislature’s ability to create any legal rules they wish. Even a legislature with that power would be substantially constrained by an independent judiciary, because it would have to exercise its power openly, through legal rules, and not covertly, by influencing the judge’ incentives.

Highly topical in light of the Supreme Court's grant of cert in Bank Markazi v. Peterson on Thursday.  The question presented there is: 

Whether [§ 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772] —a statute that effectively directs a particular result in a single pending case—violates the separation of powers.

Further background (from the petition):

This case concerns nearly $2 billion of bonds in which Bank Markazi, the Central Bank of Iran, held an interest in Europe as part of its foreign currency reserves. Plaintiffs, who hold default judgments against Iran, tried to seize the assets. While the case was pending, Congress enacted § 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772. By its terms, that statute applies only to this one case: to “the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG).” Id. § 8772(b). “In order to ensure that Iran is held accountable for paying the judgments,” it provides that, notwithstanding any other state or federal law, the assets “shall be subject to execution” upon only two findings—essentially, that Bank Markazi has a beneficial interest in them and that no one else does. Id. § 8772(a)(1), (2). 

Howard Wasserman comments on the grant at Prawfsblawg: U.S. v. Klein returns to SCOTUS.

[Disclosure: some time ago I did some informal though compensated consulting work on the Markazi case.  Even then I did not know what to think about it.]


Linda Greenhouse on Chief Justice Roberts
Michael Ramsey

In the New York Times, Linda Greenhouse: A Chief Justice Without a Friend.  An excerpt:

The attacks [on Chief Justice Roberts] from the left are logical enough. It’s the fire from the right that merits closer observation than it has generally received. Sure, it’s titillating in a man-bites-dog sort of way. But it’s also revealing of an ideological transformation now underway in how an increasingly influential segment of the conservative elite views the role of courts.


An article in the conservative Washington Times in July called him “an outcast among conservatives” who “feel deeply betrayed” and who “say it’s too late for him to salvage his credibility with them.” ...

The problem, from the point of view of the chief justice’s critics, isn’t only that he voted the wrong way [in the Obamacare cases], but that on a deeper level, he didn’t get the memo. John Roberts is conservative, beyond any doubt, but he’s a 20th-century conservative in a 21st-century world.

Remember when “judicial activism” was a nasty label that conservatives hurled at liberals and when “legislating from the bench” was the worst thing a judge could do? Not, it seems, any more. Josh Blackman and Randy Barnett, two law professors who are advising Senator Rand Paul’s presidential campaign (Professor Barnett was an architect of the first Affordable Care Act case), wrote in the conservative Weekly Standard last month that “presidential candidates should reject the vapid labels of ‘restraint’ and ‘legislating from the bench.’ ” Rather, they argued, “The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about ‘strict constructionism’ or ‘calling balls and strikes’ during a confirmation hearing.” In other words, judicial “engagement” is good. Judicial restraint is a dereliction of duty.

(Thanks to Michael Perry for the pointer).

Sounds familiar (see here).   And the Chief has some friends -- John McGinnis (and me, mostly). But I find this particular account wrong on several larger grounds.

(1)  The idea that conservatism (in the good old days) meant judicial restraint oversimplifies.  Mainstream conservative legal thought has always called for judges to invalidate statutes and executive actions that violate the Constitution.  It's true that conservatives centrally objected to activist decisions from the Warren and early Burger courts.  But modern conservative criticism of the Court has always focused on judges making up things that weren't there and ignoring things that were.  And conservative Justices have not hesitated to act against unconstitutional laws; Justice Scalia, for example, has been at the forefront of enforcing separation of powers, federalism, speech rights, gun rights, and property rights -- and criticizing the Court when it failed to do so -- since his appointment (as, mostly, has the Chief Justice).  There's nothing new about conservatives calling for judges to find things unconstitutional.

(2) A libertarian strand of conservative legal thought, sympathetic to Lochner and an aggressive view of the Ninth Amendment, is also a long-standing phenomenon.  I agree with Greenhouse that it has gotten somewhat stronger recently and that George Will's conversion to it is noteworthy.  But it remains a minority in conservative legal thought, and many intellectual leaders on the right -- including Scalia -- reject it without incurring much wrath from conservative commentators.

(3) In any event, the (supposed) rise of Lochner-inspired libertarian thought has nothing to do with the conservative Obamacare-driven criticism of Chief Justice Roberts.  The conservative critique of Roberts isn't that he should be doing something beyond "calling balls and strikes"; it's that he isn't calling the balls and strikes correctly.  Things that aren't taxes shouldn't be called taxes just because it's convenient; statutes should be read as they are written, not the way the Court wishes they had been written.  As I've said, I think these criticisms are overblown, but in any event they aren't at all related to a supposed new embrace of Lochner.

Greenhouse, I think, is trying to create a scare narrative of a radical shift in conservative objectives that has left the cautious Chief Justice behind.  But I see little ground for it; the fundamental principles of conservative legal thought are roughly what they've been for a long time, and apart from a couple of aberrational cases they are consistent with the Chief's views as well.


Randy Barnett: Is the Constitution Libertarian?
Michael Ramsey

Professor Barnett's upcoming lecture at UC Berkeley, discussed here.  An excerpt:

Truth be told, libertarians have a love-hate relationship with the Constitution. On the one hand libertarians, like most Americans, revere the Constitution. Libertarians particularly appreciate its express guarantees of individual liberty and its mechanisms to preserve limited government. If being American is to subscribe to a creed, then the Constitution, along with the Declaration of Independence, are the foundational statements of this creed.

But some libertarians have issues with the Constitution as well. And here I speak for myself, as well as others. There was a reason I eschewed writing about and teaching Constitutional Law when I became a law professor in favor of teaching Contracts. For, after taking Constitutional Law in law school, I considered the Constitution a noble, but largely failed experiment in limiting the powers of government. In my con law class, every time we got to one of the “good parts” of the text that protected liberty, we turned the page to read a Supreme Court opinion explaining why that clause did not really mean what it appeared to mean

Jacob Howard on Due Process and Constitutional Obligation and Interpretation
Chris Green

Just after posting my comments on Jacob Howard yesterday, I happened to run across a very interesting 1862 speech by Howard making due-process objections to an early version of a Civil War confiscation act. While I do not know the due-process literature as well as I know that on the Equal Protection and Privileges or Immunities Clauses, I had not seen the speech mentioned before. Howard's interpretation of due process was unambiguously procedural, quoting at length Justice Curtis's opinion for the Supreme Court in Murray's Lessee (1856) as well as Curtis's Rhode-Island-state-constitutional opinion in Greene v. Briggs (C.C.D.R.I. 1852). Howard complained that confiscation, rather than being rooted directly on the war power, was based only on litigants' failures to appear at trial. The substantive reasonableness of confiscation was no Fifth Amendment consideration at all for Howard, but he was extremely upset about the unconstitutionality, as he saw it, of the procedure:

This is but a mock confiscation. It is unworthy of the Senate, unworthy of our Government. It is a disgrace to the ermine. It is seeking to use as a degraded instrument of violating the Constitution the courts of justice, around whom we ought always to cling with our best affections, our profoundest respect, and our most vigilant protection. ... Why are we called upon to vote for so strange and anomalous a measure? Where, sir, is the necessity for it? Is it not more manly, more becoming us as the friends of the Union, to walk up fairly to the question of confiscation, and say, as we may say with truth, that it is but an ordinary power of waging war, and that we will resort to it as a war power...

Howard's clarity and depth on the due process issue contrast with another Fourteenth Amendment founder, John Bingham. In February 1866, quite implausibly seeking to defend his initial draft of the Fourteenth Amendment as simply enforcing the Fifth Amendment and the comity clause of Article IV with federal power, Bingham breezily answered Andrew Jackson Rogers's question "I only wish to know what you mean by 'due process of law' " with "I reply to the gentleman, the courts have settled that long ago, and the gentleman can go and read their decisions." Jacob Howard, however, had actually read the decisions in significant detail and explained them at length to the Senate.

Independent of the thoroughness of Howard's consideration of due process, however, Howard's prefatory comments on the nature of constitutional obligation and constitutional interpretation are especially interesting. Howard was clearly an originalist who rooted his constitutional obligation in the Article VI oath seen from the perspective of the founders, and who thought that individual moral considerations or matters of conscience were irrelevant to the task of constitutional interpretation: 

Sir, I will not talk about conscientious scruples respecting points of law, whether constitutional or otherwise, for I do not think that with a mere naked question of law addressed to our judgments, understandings, conscience has anything to do. We are sworn to uphold the Constitution, to be sure, and that oath is binding upon our consciences, but we are sworn to support it as it was intended by its framers. To ascertain this intention involves merely exercise of the intellect, and having honestly employed our powers for that purpose there rests upon us as little responsibility to conscience as if we were seeking to solve a problem of mathematics or history.

Hurrah for Jacob Howard!


Constitutional Authors, Howard and the Joint Committee
Chris Green

Mike Ramsey noted yesterday Garrett Epps's generally useful comments on birthright citizenship in the Atlantic, responding to Rand Paul. Epps is right that there was clear evidence that the Fourteenth Amendment's citizenship declaration, which emerged out of the Republicans' meetings between the Senate's initial discussion of the  Amendment on May 23, 1866 and its discussion a week later, applied beyond the freedmen.  As Wong Kim Ark itself noted, John Conness of California explained the declaration--which applied to anyone subject to the jurisdiction of the United States, going beyond the citizenship declaration of the Civil Rights Act of 1866, which merely applied to those not subject to foreign powers--in terms of its effect on a few people in California who were subject both to the United States and to the emperor of China. Rand Paul is thus wrong to confine the citizenship declaration to the freedmen and also wrong to speak of its "author." 

In the constitutional sense, the Fourteenth Amendment's author was a group of groups: the bicameral Congress, together with the bicameral ratifying state legislatures (20 on my view, more on others'). These many individuals spoke collectively only through the constitutional language itself. As I see it, any particular framer's views of constitutional text are not controlling when they are idiosyncratic, i.e., out of line with the meaning conveyed by that text at the time in virtue of the rules of the language in which was written. Even setting aside this theoretical issue aside, we do not know who exactly drafted the language which Jacob Howard introduced to the Senate on May 30. In the intervening week, it was clear that the Republicans had caucused and agreed to add the citizenship declaration and modify sections 2 and 3. Howard introduced the amendments to the Senate, but did not claim to have composed the language himself. Epps is right about all this.

This is not to say, though, that individual congressmen were never described as authors. The Cincinnati Commercial described an August 24, 1866 speech by John Bingham as "The Constitutional Amendment Discussed by its Author" (see page 19 of the collection here). I take this, however, as hyperbole; Bingham was not the author in the constitutional sense of having authority to adopt it, nor did he even compose the words of the citizenship declaration, as he did the rest of Section One (proposing it to the Joint Committee on April 21).

It is also important to correct Epps's serious error in stating that "Howard had not been a member of the Joint Committee; no one regarded him as an 'author' of any part of the amendment." This is wrong; Howard was one of only six senators on the Joint Committee (see page iii here), and, moreover, the one chosen to explain the Fourteenth Amendment to the Senate in the place of chairman William Pitt Fessenden, who was ill, as well as the Senator who presented the Republican caucus's changes a week later.  The Amendment was, moreover, actually known at times as the "Howard Amendment." Howard's explanation of the Privileges or Immunities Clause, though not perfectly free from interpretive difficulty, was by far the fullest account in Congress in 1866, and his excellent work on the Recess Appointments Clause (see here) and the nature of congressional reconstruction power (see here) both testify to his very high status among the constitutional lawyers of the time.  His views on anything during Reconstruction are never to be lightly disregarded.

The Horror of Morrison v. Olson – Part III: There is No General Separation of Powers
Mike Rappaport

I want to conclude my posts on Morrison v. Olson by discussing the majority’s treatment of the separation of powers issue generally.  As I mentioned in my prior posts, the majority approved the judicial appointment of the Independent Counsel and the restriction on the President’s removal of the IC through specific doctrines that involved appointment and removal.  But then after approving these aspects of the statute (as well as some others), the Court examined what it regarded as the overall separation of powers issue: the Court asked whether these provisions together were consistent with the separation of powers generally.

This is a peculiar way to analyze the separation of powers.  The Court seemed to believe that the different provisions could pass muster under the particular appointment and removal doctrines, but still violate the separation of powers cumulatively.  Given the Court’s premises – a belief in lenient appointment and removal doctrines and a belief that the separation of powers was about some kind of balance between the branches – I suppose the Court’s analysis made some sense.  But these premises are extremely problematic.  The language of the Constitution neither adopts such lenient doctrines nor requires an independent judicial balancing between the branches.

Instead, the correct way to analyze these matters was to apply – in an unbiased way – the Appointments Clause and the Removal Doctrine (implementing the Vesting Clause).  And that is it.  There is no additional separation of powers test.  The separation of powers is simply the relevant provisions, not some other judicial principle that the justices divine.  Thus, if the IC statute passed the appointment and removal issues, then it was constitutional.  If it did not, then it was unconstitutional.

Or to put the point differently, the balancing of the branches is already conducted by the Appointments Clause and Executive Power Vesting Clause, not by the court under a vague test of whether the law unduly interferes with the executive power.

Let me conclude by discussing another problem with the Court’s general separation of powers test.  One aspect of the Court’s approach is to draw a distinction between 1) congressional aggrandizement and 2) Congress expanding or limiting the powers of the other branches.  The Court has indicated that when Congress expands its own powers – such as claiming an appointment power or a veto power – this aggrandizement will be subjected to relatively strict scrutiny.  By contrast, if the Congress either expands executive power (say by delegating quasi legislative power to the executive) or restricts executive power (say by restricting the President’s removal power), then it will be subject to much more lenient scrutiny.

In my view, this approach is also quite wrongheaded.  For one thing, the Constitution no more prohibits Congress from expanding its powers than it prohibits Congress from expanding or contracting the powers of the other branches.  For another thing, Congress can achieve similar results by either technique.  Congress can expand its power relative to the President either by increasing its own power or decreasing the President’s power.  Moreover, Congress can often benefit itself by giving another branch power, as when Congress avoids responsibility for controversial regulations by delegating quasi-legislative power to the executive.

In the end, Morrison v. Olson was a travesty.  The opinion was written by Chief Justice Rehnquist.  While many on the right praised Rehnquist, I was not much of a fan.  And he was never worse than in Morrison.

Noah Feldman on Textualism and Purposivism (and Wine)
Michael Ramsey

I was a bit hard on a Noah Feldman column last week, so here's one I like (though I don't agree with it):  What Would Scalia Do With 2,447 Bottles of Wine? (commenting on the case Pennsylvania v. 2,447 Bottles of Wine).

Apparently Pennsylvania confiscated some wine that had been illegally brought into the state and the question was what to do with it.  As Feldman recounts:

A provision of Pennsylvania law dating back to the 1930s says that alcohol confiscated by the state can be destroyed or transferred “to a hospital for its use.”

Hoping to take advantage of this provision, the Chester County Hospital applied to the court to ask for the confiscated wine. The hospital intended to use the wine “to fund raise for charitable purposes.”

But Chester County Judge Edward Griffith refused to grant the request. In a nine-page order, he reasoned that in its original context, the law must’ve contemplated the use of confiscated liquor for medicinal purposes. Now, Griffith said, the law would not permit transferring the liquor to the hospital for sale. “Since the Liquor Code makes no provision for condemned wine to be sold for any purpose,” he reasoned, “the wine may not be delivered to a hospital for sale.”

Feldman says, and I agree, that a textualist would not reach this result.  As he describes it, Pennsylvania law just says the wine can be given to a hospital, period.  Presumably the drafters were thinking that the hospital would use it for medicinal purposes, but that intent isn't in the statute.  Another way to look at it is that intent was that the hospital could use it for any lawful purpose, which in those days was only medicinal, but now includes other things such as sale. In any event, the lawmakers could have, but did not, impose a statutory limit on use, so the court has no business creating one.

More significantly, Feldman also says that a purposivist should also find for the hospital.  This seems counterintuitive.  The judge in the case thought he could discern the statute's purpose (to allow medicinal use), and applied it to limit the text.  Why isn't that the right purposivist answer?  Feldman explains:

What should a court do when faced with a statutory purpose that is archaic, obsolete and no longer sensible? The law is still on the books, and it can’t be completely ignored. But it can be interpreted. And the interpreting court should follow Aristotle’s immortal advice: Imagine that those who drafted the law were reasonable people, and act as they would’ve wanted in the light of the new realities that now obtain.

Assuming the framers of the original law wanted confiscated liquor to help hospitals, what would they now want? Most likely, they would still want confiscated liquor to help hospitals. At one time, perhaps, that assistance came through medicinal use. Now it would come in other ways. Regardless, the statute’s true purpose is to take advantage of alcohol confiscation for the benefit of public health.

Assuming Feldman is right on purposive methodology, what he shows is that purposivism isn't really interpretation -- it's judges coming up with the result they think reasonable.  His conclusion as to what the legislature would want now is pure speculation.  First, it's an absurd counterfactual: what would a group of people who were in the state legislature in the 1930s, about whom we and Professor Feldman know nothing, what to do with confiscated wine now, 85 years later, knowing that hospitals have no use for it as medicine?  Second, his solution isn't the only available answer.  Perhaps those 1930s legislators, if informed that hospitals don't use wine for medicinal purposes anymore, would want to get rid of the wine altogether.  Or perhaps, once they understood that, post-prohibition, confiscated wine would have a market value, they would want the state to auction it off and use the proceeds for public health, or for something else.  In any event, once the medicinal link between wine and hospitals is broken, why should a hospital, as opposed to another institution, benefit?

It's pretty clear that Professor Feldman doesn't really care what the 1930s legislators would think.  What matters is what he thinks, as a reasonable interpreter.  Letting the hospital sell the wine seems reasonable, to him, so that's the answer.  And thus purposivism becomes the rule of judges.

The key move (and to my mind a somewhat deceptive one) is the shift from asking what the legislators thought they were doing when they passed the statute to asking what the legislators would want if they were passing the statute today.  The first question, which is what Judge Griffith asked, is a more-or-less manageable one, and can be justified as giving effect to what the legislators meant to enact.  It's not my preferred approach for a variety of reasons (including that it can be manipulated into Feldman's approach), but it is eloquently defended by Judge Robert Katzmann in his new book.  The second question, which is what Professor Feldman asks, really asks what the judge thinks is reasonable.  Asking it depends on a completely different theory of judging -- one that can (perhaps) be justified, but not one that can be justified on the ground of giving effect to the original legislators' intent.


The Horror of Morrison v. Olson – Part II: The Supreme Court Embarrasses Itself
Mike Rappaport

In my last post, I noted how the Supreme Court worked hard to hold the Independent Counsel statute to be constitutional, presumably on the ground that it was essential good government, only to find the political system rejecting it as poor policy a decade later. In this post, I criticize some of the arguments the Supreme Court used to hold the statute constitutional.

One key feature involved the appointment of the Independent Counsel. The statute provided that the IC would be appointed by a court. This appointment method would be constitutional only if the IC were an inferior officer, since the Constitution requires that superior (or non-inferior) officers must be appointed by the President with the advice and consent of the Senate.

Thus, the Supreme Court argued that the IC was an inferior officer, claiming that four factors suggested the result.  The argument here really was quite laughable. The IC is an extremely important position and the IC is not subject to the supervision of anyone in the government. The idea that the IC was an inferior officer, who was not important enough to require senatorial consent, was absurd. When Ken Starr was investigating Bill Clinton, he was arguably the second most important officer in the entire government (after the President). Yet, the Court treated his position as that of an inferior officer. If that is not bad enough, the Court actually argued that the conclusion that the IC was an inferior officer was clearly true and therefore it was unnecessary for the court to draw a more precise line. 

Some years later, the Court largely reversed its analysis in Edmond v. United States. Justice Scalia wrote the decision, largely dismissing the Court’s analysis in Morrison. Instead, Justice Scalia emphasized his position in his Morrison dissent, that an inferior officer must be subordinate to some other official (under which approach the IC would, of course, have been a superior officer).  All of the members of the Court joined his opinion. One very reasonable interpretation of the Edmond is that the Supreme Court essentially overruled Morrison’s Appointment Clause analysis by narrowing Morrison’s analysis to the facts of that case.

Another key feature of the case involved the fact that the President was deprived of the authority to remove the IC. Under prior law, the Court had made clear that agencies that engaged in quasi legislative and quasi judicial power could be made independent of the President under Humphrey’s Executor v. United States, but that officers that engaged in pure executive power had to be removable at the pleasure of the President under Myers. Thus, the IC, which engaged in the pure executive power of criminal prosecution, had to be subject to removal at the pleasure of the President. And since the IC was not removable in that way, the statute was unconstitutional. But the Supreme Court ignored its precedents and simply announced a new standard. Anything to approve the wonderful Independent Counsel statute.

What was even worse was the Court’s inadequate justification for overturning these precedents. A couple of years later, Justice O’Connor would write an opinion in Casey that emphasized the importance of sticking to precedent. But Justice O’Connor joined the majority opinion in Morrison, which justified its failure to follow the precedent simply on the ground that the Court had changed its mind. As the Court wrote: “We undoubtedly did rely on the terms ‘quasi-legislative’ and ‘quasi-judicial’ to distinguish the officials involved in Humphrey's Executor and Wiener from those in Myers, but our present considered view is that the determination of whether the Constitution allows Congress to impose a ‘good cause’-type restriction on the President’s power to remove an official cannot be made to turn on whether or not that official is classified as ‘purely executive.’”


Garrett Epps on Rand Paul on Birthright Citizenship
Michael Ramsey

In The Atlantic, Garrett Epps:  How Rand Paul Misunderstands the Fourteenth Amendment  (commenting on Senator Paul's statement that "The original author of the—of the Fourteenth Amendment said on the Senate floor that this was applying to slaves, and did not specifically apply to others.").  Professor Epps responds:

To begin with, Fourteenth Amendment did not have an “author.” The first draft was written by Robert Dale Owen, the radical former Congressman who served on the American Freedmen’s Inquiry Commission. From Owen, the draft passed into a closed session of the Joint Committee on Reconstruction. History doesn’t record who said what, but the draft amendment emerged much edited and was approved by a two-thirds majority of the House. From there it went to the Senate.

But at that point it had no citizenship language. That was added by a closed Senate caucus after debate began on the draft. There is no way to know who was the “author” of the citizenship clause. When it emerged with its present wording, it was shepherded to passage by Michigan Senator Jacob Howard. Howard had not been a member of the Joint Committee; no one regarded him as an “author” of any part of the amendment. Howard and the other proponents made clear that the clause would apply to the children of all aliens born in the United States, including babies born to Chinese parents (who were ineligible to citizenship) and even “Gypsies” (though it’s not clear there were any in the U.S. at that point), with the exception of children of diplomats and children of Indian tribes. I have read the entire debate on the draft amendment a number of times; I have the five volumes of the Congressional Globe on a shelf by my desk. I never saw any proponent of the amendment say that the clause, or any other part of the amendment, applied to slaves and no others.

I agree.  But as Professor Epps also says, the drafters of the Fourteenth Amendment likely weren't thinking about illegal aliens, one way or the other, because there were few restrictions on immigration at the time.  That, however, seems to me to cut somewhat in Senator Paul's favor: there probably wasn't any specific intent by the framers to grant birthright citizenship to the children of illegal aliens, because they didn't even recognize the issue.

To me, though, this illustrates the problem of getting bogged down in framers' intent.  First, as Professor Epps says, how do we identify whose intent matters?  Second, even if we could decide that, how do we establish their intent, especially about something they didn't think about.  Third, even if they had an intent, why does that matter if they didn't incorporate that intent into the words they enacted?

I therefore prefer a textual approach to this and other constitutional problems.  As I've discussed before, I think the textual approach (unlike the intent approach) yields a determinate answer.  The textual question is whether the children of undocumented aliens are "subject to the jurisdiction" of the United States when they are present in the United States.  The enactors of the Fourteenth Amendment likely didn't have an intent regarding how children of undocumented aliens should be treated for citizenship purposes, but they likely did have a shared understanding of what it meant to be "subject to the jurisdiction" of the United States.


The Horror of Morrison v. Olson -- Part I: The Supreme Court's Felt Necessities
Mike Rappaport

Back when I first read Morrison v. Olson—the case on the constitutionality of the independent counsel statute—in 1988, I thought it was a horrible opinion. Back then I was at the Office of Legal Counsel and had a pretty strong bias in favor of the executive. But even though my views on executive power have changed significantly since then, I still believe the decision is just awful. I thought I would write a couple of posts on what is so wrong with Morrison.

Morrison involved a constitutional challenge on separation of powers grounds to the independent counsel statute. Under the statute, when there was evidence of wrongdoing on the part of the President or one of his advisers that could not be clearly ruled out as insignificant, the Attorney General was required to seek the appointment of an independent counsel from a federal court. The independent counsel was essentially independent of both the Attorney General and the President, although the Attorney General could remove the IC for cause.

The Pull of the Perception of Good Government

The first problem with Morrison is that the Court seemed especially influenced by its view that the independent counsel was an essential institution of good government.  The opinion does not say this explicitly, but at the time, virtually all Democrats and many Republicans believed that the IC was necessary to police wrongdoing by the executive branch. Thus, the nonoriginalist justices on the Supreme Court were not going to strike down this essential institution that they believed was so important.

The joke, however, turned out to be on these justices (and sadly on the Constitution). As time passed, the country came to understand that the IC statute was a poor one that was not essential to good government, but instead was an engine of partisanship and bad results. Thus, the Congress let the IC statute die at the end of the Clinton presidency, with both parties saying good riddance.

Notice how this case illustrates the problem with living constitutionalism. Not only did it involve a clear mistake by the Supreme Court as to policymaking. It also involved a politically biased one.  The IC statute was popular in 1987 with legal elites—Democrats and many moderate Republicans. It was only when it was used against a Democratic President that the elites changed their mind.

Andrew Schwartz on Regulatory Takings
Michael Ramsey

Andrew William Schwartz (Shute, Mihaly & Weinberger LLP) has posted No Competing Theory of Constitutional Interpretation Justifies Regulatory Takings Ideology on SSRN.  Here is the abstract:  

Compensation for excessive regulation of the use of property under the Just Compensation Clause of the Fifth Amendment has gained wide acceptance. Introduced in 1922 in Pennsylvania Coal Co. v. Mahon, and gathering considerable momentum in 1978 with Penn Central Transportation Co. v. City of New York, regulatory takings constrains government regulation protecting the environment, public health, consumer safety, affordable housing, and other community interests. Upon close examination, however, the regulatory takings doctrine does not appear to be justified by any of the competing theories of constitutional interpretation: textualism, originalism, or evolutionary document. Rather, the doctrine seems to arise from a misunderstanding of the Just Compensation Clause as guaranteeing a laissez-faire political economy. The initial parts of this article rely for the most part on existing scholarship analyzing regulatory takings under the textualist and originalists theories of interpretation. The bulk of the article is devoted to an examination of regulatory takings under the evolutionary document theory, which has received less attention in the literature of takings. The argument that the regulatory takings doctrine in its entirety is unwarranted under an evolutionary document approach is founded on the absence of precedent for granting the courts a significant role in the formulation of what is essentially economic policy, and profound conflicts between regulatory takings and core values of the Constitution, such as liberty, equality, and democracy. I also respond to claims that a broad reading of the Just Compensation Clause is necessary to balance the interests of property owners against society or that regulatory takings is a practical tool for property regulation. Finally, the article recommends an alternative system for government policy-making to control the use of property that relies almost exclusively on statutes and administrative regulations adopted by the political branches of government.

I'm sympathetic to the claim that regulatory takings doctrine isn't justified by the Constitution's original meaning.  But this paper is more interesting as an example of what I regard as the fallacy that living constitutionalism is a logical system capable of generating determinate outcomes rather than an exercise in judicial policymaking.  To be sure, the paper is a fine brief for eliminating regulatory takings doctrine.  But I can easily argue for limits on regulatory takings from a living constitution perspective:

Assuming the original Constitution did not have protection against regulatory takings, [I would say], the circumstances have changed dramatically.  The modern regulatory state and its threat to property rights could never have been imagined by the framers; but if they had imagined it, they would have seen that it poses as great a threat (if not a greater threat) to the security of private property rights than do "true" takings of the type the framers feared and which the Constitution limited.  To give property rights the degree of protection the framers would have wanted, we must evolve a regulatory takings doctrine they did not envision, to combat a threat they did not envision.  Otherwise, their core goal to protect private property rights as a foundation of republican democracy would be rendered empty.  The short of it is that, without some protection against regulatory takings, in the modern world private property is effectively at the mercy of the whim of the government, something the framers would never have tolerated.

Whether this line of argument is persuasive depends almost entirely on whether the hearer is broadly sympathetic to property rights or broadly sympathetic to the regulatory state.  That is, its resolution depends on the judge's policy intuition.  The idea that a resolution can be achieved by appeal to a logical process that transcends policy is pure fantasy.

To be clear, as I've said before, I don't necessarily see this conclusion as a conclusive argument against living constitutionalism.  Perhaps the question "should there be constitutional limits on regulatory takings?" should be resolved by appeal to the policy intuitions of whomever happens to be on the Supreme Court at the time.  My objection is to the idea that living constitutionalism contains some legalistic answer to that question, which I take to be the supposition of the paper.


Lee Strang: Original Meaning Originalism and Computer-Assisted Research Techniques
Michael Ramsey

Lee J. Strang  (Georgetown Center for the Constitution; University of Toledo College of Law) has posted Blunting the Instability Critique: Original Meaning Originalism and Computer-Assisted Research Techniques on SSRN.  Here is the abstract:      

In this Article, I bring together a widely observed phenomenon — the theoretical move toward original meaning originalism — with an unnoticed phenomenon — the use of computer-assisted research technologies and techniques (“CART”) in originalism. I argue that originalists’ conceptual move toward original meaning originalism, when coupled with their adoption of CART, will reduce the force of the Instability Critique — the claim that originalism’s reliance on history makes any resulting constitutional law unstable. Computer-assisted research techniques reduce legal instability by increasing the degree of epistemic determinacy of the foundational aspect of originalist analysis: the recovery of language conventions contemporary with ratification of the constitutional text. 

Originalism rests on the premise that it is able to ascertain the Constitution’s original meaning with reasonable accuracy. This will lead to a number of virtues, one of which is thatoriginalism leads to relative stability in constitutional law. It does so by tying constitutional interpretation, and resulting constitutional law, to the Constitution’s determinate original meaning. 

A recurring criticism of originalism is that, on the contrary, originalism leads to instability in constitutional law. Originalism leads to instability because it depends on an activity — the recovery of the Constitution’s meaning via the methods of history — that cannot bear the weight. Instead, the critics argue, the Constitution’s meaning is either unrecoverable in principle or, if it is recoverable, interpreters’ understanding of that meaning is necessarily subject to modification. Thus, even assuming good faith and diligent research, the criticism goes,originalism will inevitably lead to fluctuating constitutional meaning. 

In response to this criticism, originalists made a major conceptual move: they rearticulated originalism as original meaning originalism in place of original intent originalism. Originalists now focused on the constitutional text’s public meaning, when it was adopted. In this Article, I build on that conceptual move, and I tie it to a modification to the method of historical research for originalism that will make the process more accurate, thereby blunting the Instability Critique’s force. In particular, I argue that original meaning originalism’s focus on the text’s conventional meaning at the time of ratification, coupled with now-widely available CART, diminishes the force of the nonoriginalist Instability Critique, identified above. 

The language conventions contemporary with the Framing and Ratification are the building block of original meaning. Computer-assisted research permits — in a way unassisted techniques did not — the relatively easy and relatively accurate recovery of these language conventions. Originalism’s conceptual change, combined with this change in how originalists perform research, provides (much of) the interpretative stability claimed by originalists. However, CART will not eliminate the Instability Critique in five situations, which I describe.


Zachary Price: Politics of Nonenforcement
Michael Ramsey

Zachary S. Price University of California Hastings College of the Law) has posted Politics of Nonenforcement (Case Western Reserve Law Review, Vol. 65, No. 4, 2015) on SSRN.  Here is the abstract:      

Constitutional controversies over executive nonenforcement have emerged as a major theme of the Obama Presidency. Yet similar controversies arose in other recent administrations — and in past debates, the two political parties’ positions on this issue were often reversed. Building on previous work addressing constitutional principles that properly govern executive enforcement discretion, this brief symposium contribution reflects on these principles in light of our current, highly polarized politics. It does so in three ways. First, Part I provides historical perspective on current debates by describing major enforcement-related controversies from the Reagan and George W. Bush Administrations. Second, Part II proposes criteria for assessing how faithful an agency’s enforcement policy is to the agency’s underlying statutory mandate. As Part II explains, several qualities — most importantly, transparency and clarity — that are generally considered virtues in administrative law are often counterproductive in the enforcement context. Finally, Part III tentatively explores possible practical, political implications of weakening norms of executive enforcement obligation.


Is John Roberts Restrained?
Michael Ramsey

At Bloomberg View, Noah Feldman: The Lonely Road Ahead for John Roberts.  He argues:

[Senator Ted] Cruz’s repudiation of Roberts, a fellow product of the conservative legal establishment, is just the latest confirmation of an astonishing process: The chief justice, a lifelong conservative who hasn't abandoned his views, is nevertheless being abandoned by conservatives -- without being embraced by liberals.

Having exercised judicial restraint in the two Obamacare cases and in the gay-marriage decision, Roberts is in the admirable and unenviable position of having a principled, across-the-board stand against activism. It's admirable because justices are supposed to have, you know, a coherent judicial philosophy. And it's unenviable because, in an era of activism, it wins you nothing but enemies on both sides.

But does Roberts really have a "principled, across-the-board stand against activism"?  In a word, no. (I use the phrase "judicial restraint," as Feldman apparently does, to mean deference to the political branches).  Consider the Chief Justice's positions in these cases:

Citizens United v. FEC (wrote 5-4 majority opinion invalidating federal campaign finance laws, over a strong dissent invoking deference).

McCutcheon v. FEC (wrote plurality opinion invalidating federal limit on campaign contributions, over a strong dissent invoking deference).

United States v. Stevens (wrote majority opinion invalidating federal law against depiction of animal cruelty)

United States v. Alvarez (joined opinion invalidating federal statute punishing lies about military service).

Snyder v. Phelps (wrote majority opinion invalidating state law giving remedies for offensive speech).

Brown v. Entertainment Merchants Association (concurred in judgment invalidating state law restricting violent video games, over dissent invoking deference)

Reed v. Town of Gilbert (joined majority opinion invalidating municipal sign regulation).

McCullen v. Coakley (wrote majority opinion invalidating state law regarding speech near abortion clinics).

True, these are all First Amendment cases.  Feldman acknowledges Citizens United (in a footnote!) but says (based on nothing) that "the First Amendment has always been a gray area for judicial restraint."  Well, how about non-First Amendment cases?

District of Columbia v. Heller (joined 5-4 majority invalidating federal gun regulation, over strong dissent invoking deference).

McDonald v. City of Chicago (joined 5-4 majority invalidating state and local gun regulation, over strong dissent invoking deference)

Shelby County v. Holder (wrote 5-4 majority opinion invalidating part of federal voting rights act, over a strong dissent invoking deference)

Free Enterprise Fund v. PCAOB (wrote 5-4 majority opinion invalidating removal provisions of federal statute establishing PCAOB).

Parents Involved v. Seattle (wrote 5-4 majority opinion invalidating local affirmative action program, over a strong dissent invoking deference).

Arizona State Legislature v. Arizona Redistricting Commission (wrote dissent that would have invalidated state redistricting law).

Arizona v. United States (joined majority opinion invalidating key parts of state immigration statute).

Of course, Roberts has voted to uphold laws on the basis of deference (most recently in the Obergefell same-sex marriage case).  But Feldman's claim is that Roberts' pursuit of restraint is setting him apart from the other conservative-leaning Justices (a "lonely road").  As in Obergefell, almost all of Roberts' "restraint" cases find him aligned with his fellow conservatives (death penalty, criminal procedure, voter identification).

Feldman's only evidence comes from the two Obamacare cases. Even these don't seem very persuasive.  In King v. Burwell, the statutory case, Roberts' vote seems as easily explained by an interpretive approach that looks more to congressional purpose than plain text (consistent with his vote in other statutory cases such as Yates v. United States and Bond v. United States -- both cases where he ruled against the government).  NFIB v. Sebelius, the constitutional case, points in various directions.  First, Roberts invalidated part of the law (relating to Medicare expansion).  Second, he upheld the individual mandate under Congress' taxing power only after finding it beyond Congress' commerce power -- a complicated (one might say convoluted) approach that may be the basis for future rulings against Congress while leaving this particular law standing.  NFIB thus looks as much like an attempt to preserve the core of one law rather than a general principle.

What Feldman needs (but can't find) is a pattern of cases in which Roberts voted with the liberal-leaning Justices on the basis of deference to uphold laws conservatives wanted struck down. While Feldman doesn't come up with any (apart from the Obamacare cases), I can think of a couple -- Williams-Yulee v. Florida Bar (First Amendment) and Comstock v. United States (federalism).  But these seem like outliers, hardly enough to show the Chief Justice's core interpretive principles.

You might think I am cherry-picking cases.  But in fact, I'm just taking the main cases in the leading Constitutional Law casebook (which I use) -- co-authored by Professor Feldman.  I assume, therefore, that Professor Feldman is well aware of the Chief Justice's long list of non-restrained cases.  What, then, is the point of his column?

A small goal may just be to highlight and celebrate the tension between Roberts and some conservatives (though not all) over the Obamacare cases.  But one may speculate that a bigger goal is to advance a narrative in which Roberts stars as the principled man of judicial restraint, to encourage him to break with conservatives in the future.  Consider that in the upcoming term there are major cases in which conservatives seek to overturn laws much favored by liberals: Friedrich v. California Federation of Teachers (compelled union dues); Fisher v. University of Texas (affirmative action at the university level); Evenwel v. Abbott (counting non-citizens for purposes of redistricting).  It would be nice (for liberals) to have Roberts leaning their way on deference grounds in these cases.

I doubt that Feldman's narrative will take hold.  The Chief Justice is indeed cautious, often preferring incremental rulings rather than sweeping ones.  But I see no evidence of overarching deference.  More likely, he sees himself doing what he famously said in his confirmation hearings -- calling balls and strikes.  In the umpire model, there's no weight given to strikes over balls; the umpire doesn't defer to the pitcher and the catcher on the right call.


New Book: "Madison's Hand" by Mary Sarah Bilder
Michael Ramsey

Recently published: Madison's Hand: Revising the Constitutional Convention (Harvard Univ. Press 2015), by Mary Sarah Bilder (Boston College).  Here is the book description from Amazon:

James Madison’s Notes on the 1787 Constitutional Convention have acquired nearly unquestioned authority as the description of the U.S. Constitution’s creation. No document provides a more complete record of the deliberations in Philadelphia or depicts the Convention’s charismatic figures, crushing disappointments, and miraculous triumphs with such narrative force. But how reliable is this account?

 In an unprecedented investigation that draws on digital technologies and traditional textual analysis to trace Madison’s composition, Mary Sarah Bilder reveals that Madison revised the Notes to a far greater extent than previously recognized. The Notes began as a diary of the Convention’s proceedings. Madison abandoned the project at a critical juncture, however, and left the Notes incomplete. He did not return to finish them until several years later, largely for Thomas Jefferson. By then, Madison’s views were influenced by the new government’s challenges and Jefferson’s political ideas. Madison’s evolving vision of republican government, his Virginia allegiances, his openness to constitutional protection for slavery, his fascination with the finer points of political jockeying, and his depictions of Alexander Hamilton and Charles Pinckney shifted during the writing and rewriting of his account. When the Notes were finally published in 1840, the layers of revision were invisible.

Madison’s version of events quickly assumed an aura of objectivity, and the Notes molded the narrative of the Constitution. Madison’s Hand offers readers a biography of a document that, over two centuries, developed a life and character all its own.

Plus strong blurbs from, among others, Jack Rakove, Michael McConnell and Garrett Epps.

(Via Larry Solum at Legal Theory Blog).


More from Stephen Griffin on the Living Constitution
Michael Ramsey

At Balkinization, Stepehn Griffin continues his posts on new originalism and living constitutionalism:  The Problematic Living Constitution: The Dead Hand and the RoR Fallacy (his prior post is discussed here).  From the introduction:

I’m continuing with this series of posts on the new originalism and living constitutionalism by distinguishing between theories of constitutional change and the most popular version of the idea of a “living” Constitution.  The last post argued that one key distinction is that theories of constitutional change are historicist while standard-form living constitutionalism is not.  This post hits closer to the living Constitution’s home base by contending that the main negative and positive arguments typically employed by living constitutionalists are flawed.  One negative move used against originalism by living constitutionalists is typically known as the “dead hand” argument.  I have to admit I never found this argument very persuasive and so I didn’t pay much attention to it in my prior work.  But this may be misleading, because some of the arguments I endorse as supporting my line of inquiry into the theory of constitutional change might be identified by other scholars as “dead hand” arguments – specifically, arguments about the difficulty of making formal changes through Article V. ...

And introducing his second point:

Now to proceed further in showing the problems with conventional forms of living constitutionalism, I will first highlight the response Mike Dorf gave to Balkin’s criticism of the dead hand argument in his HLR review.  I’ve always admired Dorf’s depth of knowledge on constitutional theory and thought his review was as good a statement as we are likely to get of where living constitutionalists stand on the different strands of argument involved in the debate between them and the new originalists.  Dorf took note of Balkin’s contention that dead hand arguments sweep too broadly, but said this point is only effective “if one thinks that the Constitution’s legitimacy must be grounded in an original act of lawmaking.”  Dorf’s nonoriginalist alternative ground, very popular among living constitutionalists, is the contemporary acceptance of the Constitution by the people of the United States.  In particular, he invokes Richard Fallon’s discussion of this move, which is based in turn on H.L.A. Hart’s theory of law and Hart’s influential concept of the “rule of recognition.”  Based on my understanding of Hart’s theory, however, I believe there is a pretty big problem with this move, at least if we stay within the terms of Hart’s theory.  Please keep in mind that the following discussion of what I call the “RoR (rule of recognition) fallacy” is based entirely on what Hart says about this concept and its application (which poses some problems) to the U.S. legal system.  I’ll try to be precise about what I think the problem is because if I’m right, quite a few scholars have been led astray about the potential of the RoR to ground the legitimacy of nonoriginalism and the living Constitution. ...


John McGinnis on Chief Justice Roberts and Political Questions (Updated)
Michael Ramsey

At Liberty Law Blog, John McGinnis: In Praise of John Roberts and his Reformulation of Political Questions.  On Roberts generally:

One’s evaluation of John Roberts’ performance may depend on how one prioritizes cases. While I disagreed with King v. Burwell, I do not think a contrary outcome would have had real-world effects, as Republicans in Congress would have caved on subsides. In contrast, on the most important constitutional issue of our time—resisting the attempt to tamp down on speech during elections—he has been the leader on the Court. He has applied neutral principles found elsewhere in First Amendment law to permit ordinary citizens to spend as much as they like to get out their views at election time, just like the media. He has given corporations the right to speak at election time, just as they do in other First Amendment contexts. He has rebuffed Justice Stephen Breyer’s dreadful idea that the Court should defer to Congress on such issues, which would turn the First Amendment from a charter of liberty into a delegation to self-interested regulators. The fate of our republic may rest on whether our representatives should be given the power to determine how opinion is shaped and he has been splendidly on the side of constitutional liberty in the most important of the cases about campaigns and speech.

And on political questions:

But my main purpose in this post is to praise his treatment of the political question doctrine in Zivotofsky v. Kerry [ed.: actually he means Zivotofsky v. Clinton].  He took a doctrine that was a mess and turned it into law rooted in the original meaning of the Constitution’s text. Before Zivotofsky, the modern doctrine was a balancing text of various factors, many of which had no clear relation to the Constitution. It was thus the kind of doctrine of which the Supreme Court case law is sadly full—a reservoir of discretion for the justices and a barrier to the understanding of the public. After Roberts’s opinion, the political question doctrine is straightforward and straightforwardly limited. It  is available only when the decision is “textually committed to another branch” or “there are no judicially discoverable and manageable standard to apply.”

I agree with both points.  As to Zivotofsky, here are my thoughts after the case was decided.  (My concern on this point, though, is that I'm not sure the lower courts are fully appreciating the force of Zivotofsky.  For example, in the Wu case I wrote about recently, the court of appeals decided the matter on political question grounds [wrongly, in my view] without paying much heed to Zivotofsky.  The Court may need to reiterate the point if Zivotofsky is going to have the transformative force it should.)

The broader point is sound as well.  Criticisms such as those Senator Cruz voiced at last weeks' candidate debate (see here from Carrie Severino) seem overblown.  Put aside the Obamacase cases, and I don't see which of the Chief Justice's votes conservative-leaning originalists have to complain about.  Indeed, when I disagree with the Chief on originalist grounds, it's usually because he takes a more conservative position that I think originalism can support (especially in criminal procedure and some campaign finance issues).

Professor McGinnis mentions Free Enterprise Fund and Noel Canning as additional examples of Roberts' respect for the rule of law and original meaning; I agree, and one could add (especially a conservative-leaning originalist would add) his dissents last term in Obergefell and Arizona State Legislature and his vote with the majority in Glossip, as well as his earlier votes with the majority in Heller and McDonald and his majority opinion in Medellin.  The only constitutional case last term where he seemed to stray in a liberal/make-it-up-as-we-go-along way was Williams-Yulee v. Florida Bar, a pretty inconsequential case and also one that I suspect is, like the Obamacare cases, something of its own category.

In sum, the Roberts appointment seems like one originalists should celebrate, notwithstanding a few disagreements.

UPDATE:  I thought of two additional cases that should make originalists and conservatives cringe: Comstock v. United States and Arizona v. United States.  Both put Roberts (and Kennedy) with the liberal-leaning Justices against Scalia and Thomas.  So on reflection I would add "mostly" before "celebrate" in the last sentence.


Enforcing the Separation of Powers: Buckley v. Valeo
Mike Rappaport

Every year, I teach the 1976 case of Buckley v. Valeo in my Administrative Law class – not the portion that involves campaign finance regulation, but the part that concerns the Appointments Clause.

Congress had established the Federal Election Commission, which was an independent agency with significant power to administer the campaign finance laws.  Congress, however, had adopted a novel method for appointing the six voting members of the Commission.  It provided that

two members are appointed by the President pro tempore of the Senate "upon the recommendations of the majority leader of the Senate and the minority leader of the Senate." Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress.

This method of appointing the commissioners obviously departs from the Appointments Clause of the Constitution.  The Appointments Clause provides that the President may appoint an officer with the advice and consent of the Senate.  (It is true that the Clause does specify other methods for the appointment of inferior officers, but the commissioners, who run the agency, are clearly not inferior officers.) 

The Supreme Court looked at this appointment method and held it to be unconstitutional.  Clearly neither the Speaker of the House nor the President pro tempore of the Senate is allowed to make appointments.  Moreover, the House of Representatives should not have a role in confirming the nominees.

What is at first glance puzzling is that the Congress should have thought it could get away with this method of appointment.  But the explanation seems clear enough.  From the middle 1930s until the Buckley case, the Supreme Court adopted an extremely lenient attitude towards the separation of powers.  As it had in the federalism cases, the Court did not admit it was not enforcing the constitutional limitations; instead, it applied those limitations in an extremely lenient way.  The main case where the Court had struck down an action on separation of powers grounds was the Steel Seizure Case, and that had involved unilateral action by the President.  The most influential opinion in that case, the concurrence by Justice Jackson, had as its main theme that when the legislature authorized the executive to take an action, liberty was essentially protected.  Thus, one could imagine that the liberals in Congress in 1974 could believe, as sophisticated observers of the Court appeared to, that departures from the constitutional text by the Congress would be allowed.

But happily it turned out not to be true.  In Buckley, the Supreme Court started to enforce the separation of powers, and the case was followed by other significant ones, such as Chadha and Bowsher.  It would be almost 20 years until the Supreme Court started the process of enforcing enumerated powers provisions of federalism.


Ed Whelan on Justice Breyer on Using Foreign Law to Interpret the Constitution
Michael Ramsey

At NRO, Ed Whelan comments (unfavorably) on Justice Breyer's recent Wall Street Journal article and forthcoming book (The Court and the World: American Law and the New Global Realities [Knopf, forthcoming September 2015]): Breyer’s Red Herring on Foreign Law.  Breyer generally defends the Court's use of foreign law in its decisions.  On foreign law and the Constitution, Whelan responds:

But the “international” part of the Supreme Court’s work includes many things that are fine and some things that aren’t. The “current … debate,” which is as much legal as “political,” isn’t about whether American courts “should refer in their opinions to decisions of foreign courts.” It’s instead about whether it’s proper for justices to rely on such decisions to determine the meaning of American constitutional provisions.

Further, the selective engagement in that unsound practice by Breyer and company plainly does “reflect” their “ideologies.” As Justice Scalia points out in his devastating dissent in Roper v. Simmons (2005) ..., the justices who invoke foreign law when it helps them haven’t done so when it doesn’t—“on matters ranging from the exclusionary rule, to church-state relations, to abortion.” Most recently (as I discussed in point 5 of this post), Breyer and the other justices in the majority in Obergefell—the very five who defend the misuse of foreign law—made no inquiry into foreign law. Why not? Because it would have cut against them: Foreign jurisdictions overwhelmingly reject SSM, and just last year even the European Court of Human Rights acknowledged that “it cannot be said that there exists any European consensus on allowing same-sex marriage.” In short, Breyer and company are entirely opportunistic and results-oriented in their resort to foreign law to resolve the meaning of provisions of the Constitution.

(Addition reviews include John Fabian Witt in the New York Times [favorable] and Adam J. White in the Wall Street Journal [unfavorable]).  From the latter:

In fact, Justice Breyer’s critics rarely worry that judges who cite foreign law will do so too rigidly. Their concern is that such judges, lacking an anchor in the Constitution’s original meaning, will invoke foreign law in an ad hoc way, whenever it is consistent with their own views. In any event, the critics argue, international law is irrelevant to the court’s task of interpreting the Constitution’s text. As Justice Antonin Scalia observed in a 2006 speech on “outsourcing American law,” foreign experience may be helpful in writing a constitution, but the court’s job is to interpret the words of the Constitution we already have, as they were originally understood.

On the matter of foreign law and the Constitution, I agree with Ed Whelan that this approach has been thoroughly discredited by Obergefell.  If one is going to say (as Justice Kennedy's majority opinion essentially did) that same-sex marriage is an inherent part of human dignity as a matter of universal principles, and if you believe that the views of foreign courts are relevant to U.S. constitutional meaning, it seems necessary to at least acknowledge the contrary views of the European Court of Human Rights (which has declined to impose same-sex marriage while generally showing sympathy for sexual orientation rights).  Acknowledging does not necessarily mean following; the South African Supreme Court, which has a constitutional mandate to consider the views of other jurisdictions, often acknowledges them without following them.  But Obergefell did not even acknowledge.  It's hard to see this as other than an admission that the Court will discuss foreign sources when they support a conclusion reached for other reasons, and not otherwise.  And if that's the case, a lot of happy talk about a global judicial dialogue on constitutional rights needs to be reconsidered.


More on Congressional Authorization and the Iran Deal: Ackerman and Golove as Scalian Textualists?
Michael Ramsey

At Opinio Juris, Bruce Ackerman and David Golove have a response to Julian Ku's criticism of their earlier article.  Professor Ku has further thoughts, with support from David Moore (BYU).  The issue is whether Congress approved the Iran deal in its May 2015 legislation, thus making the deal a binding congressional-executive agreement rather than (as generally has been assumed) a nonbinding political commitment.

Here's the full exchange:

Can the Next President Repudiate Obama's Iran Agreement? (Ackerman and Golove)

President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One” (Ku)

The Lawless Presidency of Marco Rubio–A Reply to Professor Ku (Ackerman and Golove)

Why Professors Ackerman and Golove Are Still Wrong About the Iran Deal (Ku)

A Presumption Against Authorization in the Iran Nuclear Agreement Review Act (Moore)

I'm sticking with my prior conclusion that Professor Ku has it right.  But I'm more interested in Ackerman & Golove's theory of statutory interpretation, which they don't make clear.  A purposivist view (or one even mildly influenced by context) would surely conclude that Congress did not intend to authorize a binding agreement with Iran.  As Professor Ku and I have pointed out, the context was that the President was expressly pursuing a nonbinding agreement on his own authority, and Congress wanted to be sure it had the opportunity to review any such deal before it went into effect (or, strictly speaking, Congress wanted to opportunity to review the lifting of U.S. sanctions pursuant to a nonbinding deal).  Republican opposition to any deal with Iran, or at least one without a very strict verification regime, was widespread.  The idea that a Republican-dominated Congress would authorize the President to enter into a binding deal with Iran, subject only to a congressional review and disapproval that could be vetoed, is absurd.  (And doubly absurd that they would have done this with anyone commenting on it).  This context is surely enough to show that the text of the statute is (at best) ambiguous, and that the ambiguity is best resolved against congressional authorization of a binding agreement.  (See Chief Justice Robert's majority opinion in King v. Burwell, the recent Obamacare case, using context and purpose to identify and resolve statutory ambiguity).

But perhaps Ackerman and Golove are Scalia-like literalists who would enforce the plain text of the statute in defiance of the enacting Congress' obvious intent.  (I don't recall them praising Scalia's dissent in King v. Burwell, though).  Even so, their argument fails.  As Professor Ku points out, nothing in the statute authorizes anything.  In particular, the text does not authorize the President to enter into an agreement (binding or not).  Ackerman and Golove do not identify any specific text that accomplishes what they say the statute accomplishes.  Rather, they rely on its implication: the statute contemplates that an agreement will be made by the President, and that pursuant to that agreement sanctions will be lifted unless Congress disapproves.  But, if we are going to be literal about this, recognizing that an agreement is going to be made is not the same as authorizing it.  A statute might recognize an agreement authorized by some other source (such as independent presidential authority), or it might try to regulate an agreement Congress thought unauthorized.

True, one could say that the statute authorizes the agreement by implication (I take it this is really what Ackerman and Golove are saying).  But understanding the statute's implication requires looking at its context.  And looking at the context takes us back to the earlier discussion.  At minimum, the context was that the President did not seek authorization, and Congress understood that the President planned to proceed with the agreement on his independent authority.  In that context, it should be clear that the statute is an attempt to constrain the President's exercise of his independent power, not an attempt to give him more power.

In sum, you can try to discern Congress' purpose, or you can follow the text regardless of purpose, but neither approach gets Ackerman and Golove where they want to be.  Their argument rests on a speculation as to purpose, oddly divorced from the best evidence of what the purpose actually was.  The argument only works (sort of) because they aren't clear about their interpretive approach.


Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review
Chris Green

I have posted Clarity and Reasonable Doubt in Early State-Constitutional Judicial Review on SSRN. Here is the abstract:

Courts exercising judicial review in every state require the conflict between a statute and the state constitution to be “clear,” rather than simply shown by the preponderance of the evidence. In almost every state, however, courts also require proof of unconstitutionality beyond reasonable doubt. A state-by-state canvass shows that in the great majority of states, a clarity requirement appeared first, sometimes long before a no-reasonable-doubt rule. To the extent they conflict, clarity has a better pedigree, but there are compelling reasons to take early reasonable-doubt formulations as elaborations of a clarity rule, rather than a consciously higher standard. 

The judicial obligation to exercise judicial review only when a constitutional conflict is clear is coupled with an obligation to render constitutional requirements as clear as possible. This obligation means, at a minimum, responding to all contrary considerations with an adequate reasoned explanation, as in contemporary administrative law. Because clarity is contingent on the amount of analysis that courts have given a constitutional issue in response to litigation, it can change over time.

Are historic rationales for a clarity requirement obsolete? One basic sort of rationale—the gravity of judicial review because of its resistance to correction—is not. Another sort of rationale, however—deference to the constitutional views of elected branches—is undermined if and when legislators fail to conduct constitutional analysis or executive officers fail to justify statutes adequately in litigation. Judicial consideration of such failures, however, need not eliminate a clarity requirement, which is a burden of persuasion, not production. Failures of legislative or executive justification can satisfy a clarity requirement or presumption of constitutionality rather than eliminating them.

Stephen Griffin on Living Constitutionalism
Michael Ramsey

At  Balkinization, Stephen Griffin: The Problematic Living Constitution.  From the introduction:

I’m picking up where I left off in these posts [ed.: see here and here] on the new originalism and living constitutionalism.  The last post ended with the thought that there are important differences between theories of informal constitutional change and standard-form or conventional accounts of the living Constitution.  One of the key differences is that theories of constitutional change are thoroughly historicist.  This is not true of standard-form living constitutionalism.  Proponents of the living Constitution have been perhaps overly sensitive to the charge that it is not firmly rooted in the eighteenth century or the early republic.  They have often answered this charge by pointing to Chief Justice Marshall’s broad language in McCulloch.  This leads to a back and forth, with originalists pointing out that Marshall’s language was directed at describing the broad powers Congress has under Article I rather than supporting the idea, common to living constitutionalists, that the interpretation of the Constitution’s rights provisions can legitimately change with the times.  Moreover, it is unlikely that Marshall believed as a general matter that the meaning of the Constitution could change.  Rather, in common with the framers at the Federal Convention, he thought that its general principles would be adequate to cope with changing conditions – and the meaning of those principles would not change.

And this interesting discussion:

When did ideas of the living Constitution become prominent?
One of the leading scholarly treatments is still Howard Gillman’s brilliant 1997 article “The Collapse of Constitutional Originalism and the Rise of the Notion of the ‘Living Constitution’ in the Course of American State-Building” in Studies in American Political Development.  (I would also add John Compton’s more recent book The Evangelical Origins of the Living Constitution).  I have not seen Gillman’s article cited very often by originalists.  But it starts with the historical reality, presumably congenial to originalists, that the idea of the living Constitution was unknown to the framers and to most commentators in the nineteenth century.  The leading interpretive theory was some version of what is now called originalism (although I think it is a mistake to simply assume that contemporary versions of originalism are identical with these earlier versions).  On Gillman’s account, beginning in the late nineteenth century constitutional thinkers perceived a clash between the Constitution as interpreted by the Supreme Court and the developing administrative state (I’ll have to put to one side that the nature of the development of the administrative state is more contested now than when Gillman wrote).  According to Gillman: “The strongest evidence that constitutional originalism posed problems for the emergent twentieth-century central administrative state was that none of the pre-New Deal justices who argued for the accommodation of this state attempted to justify their positions in the language of original intent; they chose to make their case by developing an innovative theory of the living Constitution.”  Gillman has in mind leading figures like Justices Holmes, Brandeis, and Cardozo.  Compton’s book, which I strongly recommend, adds a cast advocating the living Constitution that includes familiar figures like Pound, Frankfurter, Corwin, T.R. Powell, Hale, Commons, Cohen, and Dewey.
The whole post is very much worth reading.


Peter Strauss on Judge Katzmann's "Judging Statutes" (and a Comment from Me)
Michael Ramsey

Peter L. Strauss (Columbia Law School) has posted Robert Katzmann's 'Judging Statutes' (The Journal of Legal Education, forthcoming) on SSRN.  Here is the abstract:     

Chief Judge Robert Katzmann has written a compelling short book about statutory interpretation [ed.: see here], stressing the importance to sensible interpretation of knowing Congress as an institution (as few judges do). Both as a resource for teaching, and as a useful compendium of the current literature, it is a very welcome addition to the genre. Though he is careful and fair to both, readers will not be surprised to find his views on the purposive rather than the textualist side of the current disputes.. The book could set the framework for a two or three hour legislation class supplemented by cases and other readings of the instructor’s choosing. Or it might more simply be used as an independent reading assignment as law school begins, to apprise twenty-first century law students just how important the interpretation of statutes will prove to be in the profession they are entering, and how unsettled are the judiciary’s means of dealing with them. It should be required reading for all who teach in the field.

(For a less-favorable review, see this post from a while back by Adam MacLeod).

I read Judging Statutes over the summer & very much enjoyed it and highly recommend it.  I think, though, that it draws too sharp a dichotomy between Justice Scalia's uncompromising rejection of legislative history and a "purposive" approach that goes well beyond a statute's text.  In my view, a textualist can use legislative history to determine statutory meaning without embracing purposivism, and a purposivist need not (I hope!) embrace the unconstrained judicial speculation of the Holy Trinity case (which Judge Katzmann, disappointingly, endorses).

What I find most interesting about the book, though, is that Judge Katzmann repeatedly emphasizes the intent of the enacting Congress as his touchstone.  For example (p. 29):

I start with the premise that the role of the court is to interpret the law in a way that is faithful to its meaning.  The role of the court is not to substitute its judgment or to alter the terms of the statute.  Judicial respect for Congress and its lawmaking prerogatives in our constitutional scheme requires no less.

Also (p. 38): "Depriving judges of what appeared to animate legislators [by ignoring legislative history] risks having courts interpret the legislation in ways that the legislators did not intend, replacing reasoned analysis of what Congress was trying to do with subjective preferences."  And (p. 91) "I seek to interpret the statute in ways that realize Congress's meanings and purposes to the best I can discern them."

In short, this is (or at least claims to be) originalism -- just with a somewhat different methodology than Justice Scalia).  As I observed earlier

[T]his appears to be a debate within a methodology of (statutory) originalism.  Why look at the "legislative record" unless you are interested in what the enactors meant to accomplish?  ... [O]riginalism isn't controversial when we are talking about statutes.


A Neo-Dworkinian Argument for Originalism
Mike Rappaport

A while back I did a bunch of posts on the relationship between positivism and originalism.  At the time, I also planned on doing a post on Dworkinian theory and originalism, but never got around to it.  I am finally doing the post.

Dworkin favored an interpretive theory of law that attempted to interpret or give an account of a legal practice by considering the criteria of fit and justification.  Under this view, one would first consider the actual legal practice – in the constitutional area, the actual Constitution and the judicial (and other) decisions interpreting it.  One would seek a constitutional interpretation that “fits” with these legal materials – that is consistent with the practice.  But one would also seek a constitutional interpretation that is justified – that renders the actual practice to be the best that it can be on normative grounds.  The overall best interpretation would be based on both fit and justification.

Under these criteria, I believe there is a strong argument for originalism – especially the type of originalism that John McGinnis and I have developed.  This type of originalism is both attractive normatively and does a reasonable job of fitting the practice. 

First, McGinnis and I make a normative argument for originalism.  The normative argument is that the Constitution (based on its original meaning) is a good constitution.  Moreover, it is not surprising that is a good constitution, because the supermajoritarian enactment (and amendment) process that was used to pass it, is a desirable way of enacting constitutional provisions.  Following the original meaning will lead to good results today because the Constitution is a good one.  Certainly, following the original meaning is more desirable than allowing judges to depart from the original meaning based on what they consider to be the appropriate values.

Second, originalism does a reasonable job of fitting the practice.  The original Constitution itself is best understood as requiring originalist interpretation.  Subsequent interpretive practice – how the courts and others have actually interpreted the Constitution – is less originalist.  My reading of Supreme Court history is that the Supreme Court made a strong effort to be originalist until the Civil War.  It continued largely to be originalist until the early 20th century.  Beginning in the New Deal, it largely abandoned originalism in reaching results. And then in the last generation or so, originalism has grown again on the Supreme Court.

The Supreme Court, however, never expressly repudiated originalism.  Sometime it departed from originalism through precedent and other times it simply did not discuss the issue of original meaning.  Given that my originalist approach allows for the following of some nonoriginalist precedent, this brings me closer to the actual practice than originalists who entirely reject precedent.  Overall, then, I would say that the practice is at least intermediate between originalism and a repudiation of it, and it is possible that one might argue that it is even closer to originalism.

Given the mixed originalist/nonoriginalist character of the practice, the argument for originalism must rely significantly on justification.  But in my view, the normative arguments for following the original meaning are up to the job.

Thus, a strong argument can be made that the best interpretation of our constitutional practice – based on fit and justification – is to follow originalism.  Under this argument, then, the actual constitutional law in the US would be originalist.  Judges who followed nonoriginalism would not be following the law.  Of course, many people may disagree with my normative argument, but such disagreement comes with the territory of any theory, like Dworkin’s, that relies on normative argument.

(Cross posted at Liberty Law Blog) 

Wu v. United States: Executive Power and Political Questions (and Pirates)
Michael Ramsey

I am one of the attorneys on a cert petition recently filed at the Supreme Court on behalf of the plaintiff in Wu Tien Li-Shou v. United States (No. 14-1510); the case is discussed by Eugene Kontorovich at Lawfare: Piracy and the Political Question Doctrine in Non-Conflict Uses of Force.  (We filed our reply brief Monday so briefing is now complete).

It's an interesting and tragic case involving the accidental death of a Taiwanese ship captain (husband of the plaintiff) during an anti-piracy operation by the U.S. Navy off the coast of Somalia.  The captain's ship had been seized by pirates, and the allegations are that Navy personnel violated various rules and policies in attempting to recover the ship from the pirates, leading to the death of the captain and sinking of the ship.  The suit was brought under the Public Vessels Act (PVA), a U.S. statute that makes the U.S. government liable for maritime torts committed by the crews of U.S. "public vessels" (i.e., government-owned vessels such as navy ships).

The U.S. government claims that the political question doctrine precludes PVA liability in this situation (the court of appeals agreed).  In the petition, we show that this view creates a conflict with two other courts of appeal, which have held the PVA applicable to uses of force by the Coast Guard (against drug smugglers) and the Navy (in the well-known incident in which a Navy ship on patrol in the Persian Gulf mistakenly shot down a Iranian civilian airliner).  But I think the government's political question argument is mistaken on more fundamental grounds.

Whether the PVA creates liability in this situation should be a statutory question.  It's not obvious that it does: the PVA has been construed to have an exception for "discretionary functions" similar to the Federal Tort Claims Act.  (Actually the PVA's text plainly does not have that exception, but courts have found it anyway, and I'll let that pass).  So the plaintiff in Wu has to show that the Navy's actions weren't discretionary functions.  Fine so far.  (The plaintiffs in the Iranian airliner case lost on these grounds, after the court rejected the government's political question defense).

But suppose the plaintiff in Wu can show that the navy personnel violated applicable laws or policies, so their actions were not discretionary.  PVA liability should apply, should it not?  No, says the government, because the political question doctrine bars the suit; otherwise the suit would interfere with the President's command of the military.

In my view that's a conceptual error.  If the PVA provides liability in this case, then there should be liability unless the PVA is unconstitutional.  If PVA liability unconstitutionally interferes with the President's command of the military, then the PVA is unconstitutional as an infringement of executive power.  Invoking the political question doctrine just confuses the issue and results in courts analyzing the question backwards.  The correct sequence is the one I've laid out: (1) does the PVA provide liability, and (2) if so, is the PVA unconstitutional.  But because it got distracted by the political question doctrine, the court of appeals here dealt with the constitutional issue first, and without directly recognizing it as a question of executive power.

It's true, of course, that whether courts ought to assess liability of U.S. military forces in anti-piracy operations is a difficult policy question.  But it's a policy question answered (one way or the other) by the PVA.  Courts shouldn't re-examine the policy question Congress has decided (which is what the government effectively invites by invoking the political question doctrine).  They should follow the policy of the statute, unless it's unconstitutional.

At one point in the middle of its brief in opposition, the government seems to acknowledge this point: "Congress may not override a textual constitutional assignment of an issue to another Branch -- and thereby convert an otherwise nonjusticiable political question into a matter to be adjudicated in court -- by enacting a statute that purports to confer a right to have the courts resolve the issue."  I agree with this proposition as a general matter.  But it bars the suit in Wu only if it is unconstitutional for Congress to regulate the activities of the navy in anti-piracy operations.

Put this way, the answer is obviously that the statute (applied to the navy) is constitutional.  Congress has constitutional power to "make Rules for the Government and Regulation of the land and naval Forces." Under that power, it seems plain that Congress can (a) provide general rules of engagement for navy ships, and (b) provide for compensation to victims when the rules are violated.  Thus the only question in the case ought to be whether Congress did so in the PVA.

Incidentally, once it's made clear what the government is really arguing here, it's also clear that this is exactly the same argument John Yoo and Jay Bybee made in their famous "torture memos" during the GW Bush administration; they argued that Congress couldn't ban torture or other war crimes by U.S. forces because that would interfere with the President's exclusive control over the military.  I didn't think much of that argument then (see 93 Georgetown L.J. 1213, 1236-1245 [2005]) and I still don't.  It seems clear that, although the President is commander-in-chief, his command is subject to the "Rules for the Government and Regulation" made by Congress.  Otherwise, the government-and-regulation clause appears meaningless.

In any event, the political question doctrine shouldn't be used to obscure what's at stake here.  The question is whether Congress can create liability for harms done by the military (and, of course, secondarily whether Congress has done so in the PVA).


Does the Iran Deal Bind the Next President?
Michael Ramsey

In The Atlantic, Bruce Ackerman (Yale) and David Golove (NYU) argue that the Iran nuclear deal is a binding, congressionally approved agreement -- principally in response to these comments by Senator Marco Rubio:

But again, it’s not a treaty. There’s nothing legally binding about it. This is basically the President has decided to use the national security waiver of the current sanctions that are already on the books, and he’s going to use that waiver to lift sanctions on Iran. When I’m President of the United States, we will reimpose those sanctions on day one, and then I will go to Congress and ask them to even increase those sanctions more ...

(More from Senator Rubio here, in an earlier interview by Jeffrey Goldberg of The Atlantic). Ackerman and Golove say:

Rubio is wrong. If taken seriously, his position would destroy the binding character of America’s commitments to the IMF, the World Bank, NAFTA, and the World Trade Organization. The accords that undergird these institutions, like the Iran agreement, have their foundation in statutes authorizing the president to commit the nation. The Constitution makes these statutes the “supreme law of the land,” binding the country in the same manner as treaties approved by the Senate. The President can no more walk away from them than he can from any other law or treaty.

But at Opinio Juris, Julian Ku disagrees: President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One”.  From the core of the post:

I am sorry to say that [the Ackerman/Golove] article, which comes from two super-respected legal scholars, is deeply and badly mistaken.

This argument is based on the premise that the “legislation that Congress adopted last May, …explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” In their view, the Iran Deal is a simply a congressional-executive agreement exactly akin to U.S. trade agreements like NAFTA.

But this premise is wrong.  The U.S. government has repeatedly stated (see here)  that the “Joint Coordinated Plan of Action” between Iran and the P-6 powers is a “nonbinding” political commitment. And the JCPOA itself talks only of “voluntary measures.” (see Dan Joyner’s discussion of this here).   Even the United Nations Security Council Resolution that implements the JCPOA does not legally bind the U.S. to stick to the JCPOA (as John Bellinger argues here).

I completely agree with Professor Ku, and indeed I find the opposing view difficult to understand.  The Ackerman/Golove position depends on finding that Congress authorized the President to enter into a binding agreement with Iran, but they point to nothing suggesting Congress has done so.  To expand on my earlier arguments and to embellish Professor Ku's excellent points:

(1)  The bill Congress enacted in May (originally the Corker-Menendez bill, passed as HR 1191) does not say anything about authorizing a deal (or indeed, about authorizing anything).  It says that the President's pre-existing statutory authority to lift sanctions on Iran is suspended for 60 days after any arrangement the President might make with Iran regarding sanctions.  That is, it's a limit on the President's prior authority, not a grant of additional authority.  By its terms, if Congress does not act within a certain time to disapprove the lifting of sanctions, the President's prior sanctions authority is revived.  In sum, the bill is about lifting sanctions now, not about promises in the future. Ackerman and Golove are simply wrong in asserting that the Corker-Menendez bill is a "statute[ ] authorizing the president to commit the nation" akin to the statutes that expressly approved NAFTA and the other international institutions they name.

(2) Even if the Corker-Menendez bill is read to implicitly authorize a deal with Iran (subject to Congress' later right to disapprove), it's clear that the deal everyone had in mind was a nonbinding arrrangement.  As Professor Ku says, the administration's position at the time (Spring 2015) was that it was negotiating a nonbinding deal.  (See also here [reporting comments by State Department spokeswoman Jen Psaki] and here [reporting Secretary of State Kerry's testimony to Congress]. The reason, of course, was that the administration did not want to ask for Congress' authorization since it knew that authorization would be denied (even for a nonbinding deal).  And constitutionally, the President could only claim he didn't need Congress' authorization if the deal was nonbinding.  Thus there's no basis in context to conclude that Congress authorized a binding deal since the administration made clear that a binding deal was not even being contemplated.  Put another way, there's no possibility that the Corker-Menendez bill would have passed if Congress thought it had the effect Ackerman and Golove now claim it had.  

It's true that the bill acknowledges that the President is likely to make an agreement with Iran.  But as I argued previously:

[T]he context of the May legislation was that the President planned to make a nonbinding arrangement without Congress’ approval and, pursuant to that arrangement, exercise his statutory power to suspend the sanctions.  Thus the point of Congress’ legislation was to limit the President’s power to suspend sanctions pursuant to a nonbinding agreement (which it assumed the President would conclude on his own authority).  To now argue that the legislation approved a binding agreement takes it completely out of context.

(3) Even if Congress authorized the President to make a binding deal with Iran (which it clearly didn't), the actual deal is nonbinding on its own terms, again as Professor Ku explains.  (Among other things, it's no accident that the deal is called a "Plan of Action" rather than a "compact," "agreement," or "accord"). It's also worth noting that even with Senator Rubio and other Republican presidential candidates calling the deal nonbinding, the administration has not claimed otherwise.  And for good reason: the argument for congressional authorization is embarrassingly weak, and without congressional authorization any presidential attempt to make a binding deal is almost certainly unconstitutional. 


Larry Solum on Interpretation and Construction
Michael Ramsey

At Legal Theory Blog, Larry Solum has updated his Legal Theory Lexicon entry for "Interpretation and Construction."  From the introduction:

Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex.  What does the text mean?  How does that meaning translate into legal doctrine?  And how does the doctrine apply in the context of the facts of the case?  One way to think more clearly about this process is to distinguish between interpretation and construction.  We can roughly define these two activities as follows:

  • Interpretation: The activity of discerning the linguistic meaning in context (or communicative content) of a legal text.

  • Construction: The activity of determining the legal effect (or legal content) of a legal text.

And from the later discussion:

One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism."  One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction.  (This is especially clear in the work of Keith Whittington and Randy Barnett.)  The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation.  Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work.  New Originalists deny that this is true.  They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene. 

Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results.  We might call the view that original meaning and a living constitutionalism are consistent "compatabilism"--the case for this view has been made by Jack Balkin.

This also suggests the possibility that continued appeals to "original intentions" or "original expected applications" beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning.  Some originalists who resist compatibilism are really arguing the living-constitutionalist construction is inconsistent with originalist construction. 


Or Bassok: Interpretative Theories as Roadmaps to American Identity
Michael Ramsey

Or Bassok  (European University Institute - Department of Law) has posted Interpretative Theories as Roadmaps to American Identity (Global Constitutionalism, forthcoming) on SSRN.  Here is the abstract:      

As long as the American Constitution serves as the focal point of American identity, many constitutional interpretative theories also serve as roadmaps to various visions of American constitutional identity. Using the debate over the constitutionality of the Patient Protection and Affordable Care Act, I expose the identity dimension of various interpretative theories and analyze the differences between the roadmaps offered by them. I argue that according to each of these roadmaps, courts’ authority to review legislation is required in order to protect a certain vision of American constitutional identity even at the price of thwarting Americans’ freedom to pursue their current desires. The conventional framing of interpretative theories as merely techniques to decipher the constitutional text or justifications for the Supreme Court’s countermajoritarian authority to review legislation and the disregard of their identity function is perplexing in view of the centrality of the Constitution to American national identity. I argue that this conventional framing is a result of the current understanding of American constitutional identity in terms of neutrality toward the question of the good. This reading of the Constitution as lacking any form of ideology at its core makes majority preferences the best take of current American identity, leaving constitutional theorists with the mission to justify the Court’s authority to diverge from majority preferences.

Via Larry Solum at Legal Theory Blog, who adds:

Highly recommended, with an intriguing discussing of "identity originalism."  Bassok is surely right that some appeals to original meaning (especially outside the academy) are entwined with the narrative and identity functions of the Constitution and the framing era, but I am not convinced that "identity originalism" exists as an approach to constitutional interpretation (as opposed to a motivation for originalist approaches).


Harold Anthony Lloyd: Pragmatics and Textualist Error
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Law's "Way of Words": Pragmatics and Textualist Error on SSRN.  Here is the abstract:      

Lawyers and judges cannot adequately address the nature of text, meaning, or interpretation without reference to the insights provided by linguists and philosophers of language. Exploring some of those insights, this article focuses upon what linguists and philosophers of language call “pragmatics.” Pragmatics examines the relations between words and users rather than the relations of words to words (syntax) or the relations of words to the world (semantics). In other words, pragmatics studies how language users actually use and interpret words and other signs in communication. 

Pragmatics recognizes that speaker meaning can differ from (and even contradict) linguistic meaning including the literal meaning of text. In its proper context, for example, “Bob is indeed a good lawyer” can ironically mean just the opposite. Pragmatics also recognizes that relevant text is not a thing-in-itself that is simply given. Good lawyers look at such things as purpose and cohesion when determining relevant text. They do not simply take their opponent’s (or even their client’s) assertions of relevance. 

Pragmatics also provides lawyers with a number of specific concepts and tools which are helpful in determining speaker meaning. For user convenience, this article attempts to set out in one place a number of such concepts and tools. These include: (1) types of cohesion that help determine relevant text, (2) types of context that help determine meaning, (3) pragmatic principles of construction such as principles of relevance and politeness, and (4) important pragmatic notions or devices such as anaphora, cataphora, ellipsis, deixis, presupposition, unstated premises, entailment, and implementives.

Finally, as a recurring example (among others) of pragmatics in action, this article examines from multiple perspectives textual issues raised in King v. Burwell, 576 U.S. __ (2015).



Josh Blackman on House of Representatives v. Burwell and Congressional Standing
Michael Ramsey

Josh Blackman has an extensive analysis of the recent District Court decision in House of Representatives v. Burwell, which found that the House as an institution has standing to sue the President for spending money without an appropriation.

(Plus more from Elizabeth Price Foley at Instapundit here.)

It's not an originalist opinion, although the core conclusion derives some logical force from the Constitution's text and structure:

... [T]he House has suffered a concrete, particularized injury that gives it standing to sue. The Congress (of which the House and Senate are equal) is the only body empowered by the Constitution to adopt laws directing monies to be spent from the U.S. Treasury. See Dep’t of the Navy v. FLRA, 665 F.3d 1339, 1348 (D.C. Cir. 2012) (“Congress’s control over federal expenditures is ‘absolute.’”) (quoting Rochester Pure Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992)); Nevada v. Dep’t of Energy, 400 F.3d at 13 (“[T]he Appropriations Clause of the U.S. Constitution ‘vests Congress with exclusive power over the federal purse’”) (quoting Rochester, 960 F.2d at 185); Hart’s Adm’r v. United States, 16 Ct. Cl. 459, 484 (1880) (“[A]bsolute control of the moneys of the United States is in Congress, and Congress is responsible for its exercise of this great power only to the people.”), aff’d sub nom. Hart v. United States, 118 U.S. 62 (1886). Yet this constitutional structure would collapse, and the role of the House would be meaningless, if the Executive could circumvent the appropriations process and spend funds however it pleases. If such actions are taken, in contravention of the specific proscription in Article I, § 9, cl. 7, the House as an institution has standing to sue.

Significantly for originalists, the opinion relies to some extent on the Supreme Court's Arizona redistricting case, which found that the Arizona legislature had standing to challenge an Arizona constitutional rule that (according to the legislature) deprived it of its right under the U.S. Constitution to control redistricting.  Justice Scalia, joined by Justice Thomas, dissented as to standing in that case, and it does seem that if the Arizona legislature lacked standing, likewise the House should lack standing.

But I am not sure about Justice Scalia's standing analysis as an originalist matter.  Here is his central contention from the Arizona case:

What those who framed and ratified the Constitution had in mind when they entrusted the “judicial Power” to a separate and coequal branch of the Federal Government was the judicial power they were familiar with—that traditionally exercised by English and American courts. The “cases” and “controversies” that those courts entertained did not include suits between units of government regarding their legitimate powers. The job of the courts was, in Chief Justice Marshall’s words, “solely, to decide on the rights of individuals,” Marbury v. Madison, 1 Cranch 137, 170 (1803).

True, there's likely no precedent for these sorts of suits under eighteenth century English law, giving rise to the question whether they are part of the "judicial Power."  But England didn't have a separation of powers defined by a written constitution and enforceable by judicial review.  So maybe English practice shouldn't be decisive.  And we (and Justice Scalia) readily accept institutional standing for states to sue the federal government and each other, as part of the Constitution's implicit design, even though there was (naturally) no counterpart for such suits in English law, and even though state vs. federal suits are not (directly) brought to "decide on the rights of individuals."  Scalia's opinion actually turns entirely on a distinction between state vs. federal suits and "suits between units of [the same] government regarding their legitimate power." (emphasis added).

I don't see an originalist basis for that distinction.  In a separated power system, the horizontal division of power among constitutionally distinct institutions at the national level is analogous to the vertical division of powers between constitutionally distinct entities at the national and state level.

That doesn't mean that all institutional standing cases should come out in favor of standing.  As to particular claims, the injury, causation or redressibility may be lacking.   In this case, though, the House seems to have a fair claim that, as to appropriations, the President is (arguably) exercising a right reserved exclusively to Congress and that the institution is thereby harmed by the loss of that exclusive right.  Unless there is a blanket rule against institutional standing (as Scalia favors) this seems a strong claim.

(But, as an aside, I don't see how the House hopes to win this case without the votes of Scalia and Thomas).

A further thought: I can't help but object to one aspect of the District Court's opinion, differentiating standing and the political question doctrine.  She writes (quotations and citation omitted, emphases added):

There is a significant difference between determining whether a federal court has jurisdiction of the subject matter and determining whether a cause over which a court has subject matter jurisdiction is justiciable. Jurisdiction governs a court’s authority to hear a case; justiciability pertains to the advisability of hearing the case.

Justiciability counsels the avoidance of political cases or controversies. The term ‘political’ has been used to distinguish questions which are essentially for decision by the political branches from those which are essentially for adjudication by the judicial branch. Hence the “political question” doctrine. That self-imposed limitation [ed.: !] bars our jurisdiction only when the Constitution textually commits the issue to be adjudicated in the case to a coordinate political department, or when there is a lack of judicially discoverable and manageable standards for resolving it.

No, no, no!  (Not as an original matter anyway, and as re-affirmed in Zivotofsky v. Clinton).  Non-justiciability is a constitutional command: the matter is textually committed to another branch by the Constitution or there are no judicially manageable standards and thus the issue is beyond the judicial power to resolve.  This is not about the "advisability" of hearing the case; it's about whether the Constitution allows the court to hear the case.  The political question doctrine is jurisdictional, as much as standing is.  (And the supposed "prudential" parts of it, traceable to the profoundly non-originalist opinion in Baker v. Carr, are as suspect as the supposed prudential parts of standing doctrine.)

But I agree with the District Court that the political question doctrine doesn't bar this suit: it's a pure question of constitutional interpretation, exactly in line with Zivotofsky.