Anita Krishnakumar: Textualism and Statutory Stare Decisis
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) has posted Textualism and Statutory Stare Decisis on SSRN.  Here is the abstract: 

On the surface, textualism and the doctrine of statutory stare decisis seem to have much in common — both are rule-bound and emphasize predictability and stability in the law, legislative supremacy, the need to limit judicial discretion, and the need to preserve the legitimacy of the Court as an institution. Yet, in practice, textualist jurists — at least at the Supreme Court level — have proved quite willing to abandon statutory stare decisis and to argue in favor of overruling established statutory precedents. Why? This paper advances a twofold thesis. First, it argues that textualism suffers from a “correct answer” mindset, which makes it especially difficult for its proponents to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. While others have noted that this tension between accuracy and stare decisis poses problems for textualists, they have tended to brush it off as a tension that also affects other interpretive theories and to insist that textualism can and does give way to statutory stare decisis as a matter of necessity. Second, and more importantly, this paper argues that textualist jurists tend to view statutory precedents that create a test for implementing a statute as different from more ordinary parsing-the-text statutory interpretation. That is, textualist jurists regard implementation-test precedents as akin to common law decision-making, rather than statutory interpretation—and seem to have created a de facto “implementation test” exception to the heightened stare decisis protection typically afforded to statutory precedents.

The paper begins by providing several examples of cases in which textualist Justices on the U.S. Supreme Court have rejected statutory stare decisis and voted to overturn a statutory precedent. The argument is largely descriptive but has significant theoretical and normative implications. In particular, the implementation-test insight suggests a new and previously unexplored explanation for the judicial treatment of congressional overrides and the shadow precedent phenomenon that some scholars have observed. The distinction between implementation tests and text-parsing statutory construction also highlights important and underappreciated differences between textualist and purposivist visions of the judicial role in statutory interpretation. In the end, the paper both supports and critiques the implementation test exception to statutory stare decisis. It argues that the Supreme Court should be free to reexamine implementation tests that have been criticized by lower courts as confusing or unworkable in practice. But for separation of powers reasons, and in order to preserve stability and predictability, the Court should limit this implementation test exception to only those contexts in which substantial lower court criticism is present.


James Brudney & Lawrence Baum: Protean Statutory Interpretation in the Courts of Appeals
Michael Ramsey

James J. Brudney (Fordham University School of Law) and Lawrence Baum (Ohio State University - Department of Political Science) have posted Protean Statutory Interpretation in the Courts of Appeals on SSRN.  Here is the abstract:      

This article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia. 

We begin by identifying several factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade, and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields. 

We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Appeals court judges use dictionaries far less relative to legislative history than do the justices; moreover, we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. For legislative history, circuit courts use it regularly to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value. 

For both dictionaries and legislative history, the courts of appeals’ eclectic approach differs markedly from the Supreme Court’s more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the justices’ interaction with all their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court’s current approach which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis.


Ilya Somin on Murr v. Wisconsin
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Our amicus brief on behalf of nine states in an important Takings Clause property rights case.  From the introduction:

...[T]he state of Nevada [has] filed an amicus brief I coauthored on behalf of Nevada itself and eight other state governments in Murr v. Wisconsin, a major property rights case currently before the Supreme Court. The case addresses an important question about when property owners are entitled to compensation under the Takings Clause of the Fifth Amendment: whether an action that might otherwise be a taking might cease to be one merely because the owner of the affected lot also happens to own other property contiguous to it.

The Clause requires the government to pay “just compensation” any time it “takes” private property. In its 1978 decision in the Penn Central case, the Supreme Court ruled that whether regulatory restrictions on property rights amount to a taking depends on their impact on the “parcel as a whole.” If the regulation affects only a small part of the parcel or has little impact on its overall value and use, it probably will not be ruled a taking, and no compensation is required. In Murr, a Wisconsin court ruled that the relevant parcel includes not only the one actually impacted by the regulation, but contiguous property the owned by the same landowner. As we explain in our brief, this approach is at odds with the text and original meaning of the Takings Clause, and seriously endangers property rights.


Matthew J. Steilen: The Josiah Philips Attainder and the Institutional Structure of the American Revolution
Michael Ramsey

Matthew J. Steilen (State University of New York (SUNY) at Buffalo, Law School) has posted  The Josiah Philips Attainder and the Institutional Structure of the American Revolution (Critical Analysis of Law, forthcoming) on SSRN.  Here is the abstract:     

This is a study of the Case of Josiah Philips, a militant loyalist who led a terror campaign at the opening of the Revolutionary War and was attainted by an act of the Virginia General Assembly in 1778. In his edition of Blackstone’s Commentaries, St. George Tucker asserted that judges on Virginia’s General Court had refused to enforce the attainder. It has long been thought that Tucker’s claim was false, since Philips was captured before the end of the grace period in the act of attainder.

Here I return to the Philips sources from a new perspective, reinvigorate Tucker’s claims, and show how the case continues to be of interest. As I read it, the case is centrally concerned with a constitutional dispute over the role of the general assembly during wartime. In particular, Philips's treatment by the Virginia General Assembly exposed a disagreement about the proper scope of residual judicial powers in a republican assembly. Thomas Jefferson saw the assembly as the proper institutional repository of summary legal processes in wartime, deriving from the king’s obligation to do justice and to cure failures in judicial forms of process. Jefferson was opposed by, among others, Edmund Randolph, who was concerned about the corrupting effect of summary procedures in the assembly on ordinary forms of civil justice, as well as resulting violations of the rights of prisoners under the customary law of war. Although we cannot know for certain, there are reasons to suspect that Virginia judges refused to enforce the provision of the act of attainder requiring that Philips be tried for treason in a court of law if he surrendered before the end of the grace period. Treason was an offense that could only be committed by one who owed the sovereign allegiance, and there were two compelling reasons to conclude that Philips did not owe Virginia allegiance: he did not obtain any protection from the Virginia government (as he resided in an ungoverned area of the state), and he had allegedly accepted a military commission from the British government, making him an enemy belligerent.


New Book: "Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech"
Michael Ramsey

Forthcoming from Stephen D. Solomon (NYU -- Journalism): Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech (St. Martin's Press 2016).  Here is the book description from Amazon:

When members of the founding generation protested against British authority, debated separation, and then ratified the Constitution, they formed the American political character we know today-raucous, intemperate, and often mean-spirited. Revolutionary Dissent brings alive a world of colorful and stormy protests that included effigies, pamphlets, songs, sermons, cartoons, letters and liberty trees. Solomon explores through a series of chronological narratives how Americans of the Revolutionary period employed robust speech against the British and against each other. Uninhibited dissent provided a distinctly American meaning to the First Amendment's guarantees of freedom of speech and press at a time when the legal doctrine inherited from England allowed prosecutions of those who criticized government.

Solomon discovers the wellspring in our revolutionary past for today's satirists like Jon Stewart and Stephen Colbert, pundits like Rush Limbaugh and Keith Olbermann, and protests like flag burning and street demonstrations. From the inflammatory engravings of Paul Revere, the political theater of Alexander McDougall, the liberty tree protests of Ebenezer McIntosh and the oratory of Patrick Henry, Solomon shares the stories of the dissenters who created the American idea of the liberty of thought. This is truly a revelatory work on the history of free expression in America.

(Via Ronald Collins at Concurring Opinions).


The Legality of State Sanctions on Iran
Michael Ramsey

At Volokh Conspiracy, Eugene Kontorovich asks: How far will Obama’s ‘encouragement’ to states to drop Iran sanctions go?  He begins:

The Obama administration has been writing letters to all 50 state governors, urging them to reconsider economic sanctions they have against Iran. Almost half of U.S. states have adopted such measures, which were explicitly authorized by statute in the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA).

“I would urge you to consider whether the implementation of the JCPOA, which verifiably ensures that Iran’s nuclear program is and will remain exclusively peaceful, addresses the underlying concerns with Iran articulated in your state’s law,” one of the letters stated.

The question is whether the administration will argue that the state laws are preempted by the JCPOA (that is, the Iran nuclear deal, or Joint Comprehensive Plan of Action).  The answer should be (as Professor Kontorovich says) that the state laws are not preempted because the JCPOA is a nonbinding agreement, not a treaty, and so is not included in supreme law under the Article VI of the Constitution.

The matter is complicated, however, by the Supreme Court's decision in American Insurance Association v. Garamendi, which held on somewhat similar facts that a state law was preempted because it conflicted with a presidential policy expressed in an executive agreement.  (I have written a couple of articles that are very critical of Garamendi [in which I served as one of the counsel for the state] -- see here and here.)

The present situation with Iran is a little different from Garamendi, and more favorable to the states.  First, as Professor Kontorovich's post notes, the state laws are specifically authorized by Congress, which was not the case in Garamendi.  Second, the presidential policy in Garamendi was expressed in an executive agreement, not a nonbinding agreement, and some executive agreements (but not nonbinding agreements) have been given preemptive effect by the Supreme Court despite the plain text of Article VI.  Third, as Professor Kontorovich also notes later in his post, the Court's post-Garamendi decision in Medellin v. Texas took a very negative view of preemption by unilateral executive acts.  Medellin said (rightly, as I say here) that according them preemptive effect would make the president a lawmaker, contrary to the Constitution's basic separation of powers.  Medellin also described Garamendi and related cases on executive agreements very narrowly as involving claims settlements, which the Court seemed to regard as a constitutionally distinct category.  (The JCPOA is not a settlement agreement).

So I agree with Professor Kontorovich: if the administration wants to make a case of it, bring it on!  The states are on very strong ground.


New Book: 'Our Republican Constitution' by Randy Barnett
Michael Ramsey

Recently published, by Randy Barnett: Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (Broadside Books 2016).  Here is the book description from Amazon:

A concise history of the long struggle between two fundamentally opposing constitutional traditions, from one of the nation’s leading constitutional scholars—a manifesto for renewing our constitutional republic.

The Constitution of the United States begins with the words: “We the People.” But from the earliest days of the American republic, there have been two competing notions of “the People,” which lead to two very different visions of the Constitution.

Those who view “We the People” collectively think popular sovereignty resides in the people as a group, which leads them to favor a “democratic” constitution that allows the “will of the people” to be expressed by majority rule. In contrast, those who think popular sovereignty resides in the people as individuals contend that a “republican” constitution is needed to secure the pre-existing inalienable rights of “We the People,” each and every one, against abuses by the majority.

In Our Republican Constitution, renowned legal scholar Randy E. Barnett tells the fascinating story of how this debate arose shortly after the Revolution, leading to the adoption of a new and innovative “republican” constitution; and how the struggle over slavery led to its completion by a newly formed Republican Party. Yet soon thereafter, progressive academics and activists urged the courts to remake our Republican Constitution into a democratic one by ignoring key passes of its text. Eventually, the courts complied.

Drawing from his deep knowledge of constitutional law and history, as well as his experience litigating on behalf of medical marijuana and against Obamacare, Barnett explains why “We the People” would greatly benefit from the renewal of our Republican Constitution, and how this can be accomplished in the courts and the political arena.

Jack M. Balkin (Yale Law School) has posted a response, Which Republican Constitution? (Constitutional Commentary, 2016, forthcoming), on SSRN.  Here is the abstract: 

Randy Barnett argues that the American political tradition, understood in its best light, features a "Republican Constitution." But Barnett's version of "republicanism" has relatively little to do with the historical tradition of republicanism, a tradition that celebrates the common good; seeks to inculcate civic virtue; opposes aristocracy, oligarchy, and corruption; understands liberty not as mere negative freedom but as non-domination; connects civil rights to civic duties; and demands a government which derives its powers from and is ultimately responsive to the great body of the people.

Instead, Barnett's "Republican Constitution" is far closer to what most historians of the Founding would regard as the opposite or complement of the republican tradition. This is the tradition of natural rights liberalism, which begins with John Locke and evolves into classical liberalism in the nineteenth century. This tradition celebrates individual autonomy, views the state as organized to protect the natural rights of individuals, fears the tyranny of majorities, and treats liberty as a negative freedom — a protected space in which individuals, free from state control, may accumulate property and pursue happiness.

Although Barnett identifies his "Republican Constitution" with the Founders, it is really a sympathetic restatement of late nineteenth-century classical liberalism, which combined dual federalism with police powers jurisprudence. Conversely, his constructed foil, which he calls the "Democratic Constitution," is really a version of early twentieth-century progressivism which arises in opposition to the Gilded Age. Barnett's imagined opposition between "Republican" and "Democratic" visions of the Constitution at the Founding is really an idealized version of the struggle between classical liberalism and progressivism at the beginning of the twentieth century. This is an important clash of values, and it had momentous consequences for the way we understand constitutional law today. But it is not an adequate account of Founding-era thought.

By taking the word "republican" and pasting it onto the classical liberal tradition, Barnett has buried a truly important tradition in American constitutional thought — the actual historical republican tradition. This tradition is especially relevant today. Our contemporary politics is full of anxieties about republican themes: corruption, oligarchy, self-dealing, and lack of devotion to the public good. Barnett's classical liberalism is too thin to meet these contemporary concerns. By insisting that the central if not sole purpose of government is to protect natural rights — including, most prominently, the right to acquire and accumulate property — his account seems to talk past what concerns many people today about our political and constitutional system, not only on the left, but also on the right. It actually disables us from focusing on the important connections between democracy and political economy that the historical theory of republicanism was centrally concerned with.

The American constitutional tradition, understood in its best sense, has always drawn on elements of both the republican and liberal traditions, and applied them to the problems and circumstances of the age. It has employed the best parts of each tradition to critique and transcend the blindnesses and limitations of the other. That is as true of the founding period as it is of the present. No reconstruction of the American constitutional tradition can afford to discard one-half of this dialectic.

Professor Barnett briefly sketches a reply to Professor Balkin here.  At Legal Theory Blog, Larry Solum also has some thoughts, including this:

One way to characterize Barnett's project is that Barnett is engaged in metalinguistic negotiation, proposing a conception of "republican constitutionalism" for today that would stand in opposition to the progressive "democratic constitutionalism" that is favored by many contemporary constitutional scholars who are associated with the contemporary Democratic Party.


Alex Reinert: Slaves, Prisoners, and 'Cruel and Unusual' Punishment
Michael Ramsey

Alex Reinert (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Reconceptualizing the Eighth Amendment: Slaves, Prisoners, and 'Cruel and Unusual' Punishment (North Carolina Law Review, Vol. 94, 2016, pp. 817-860) on SSRN.  Here is the abstract:

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination. In particular, I argue that the phrase “cruel and unusual punishment” was intertwined with pre- and post-Revolutionary notions of the permissible limits on the treatment of slaves. The same standard that the Framers adopted for the treatment of prisoners in 1787 was contemporaneously emerging as the standard for holding slaveholders and others criminally and civilly liable for harsh treatment of slaves. Indeed, by the middle of the nineteenth century, constitutional law, positive law, and common law converged to regulate the treatment of prisoners and slaves under the same “cruel and unusual” rubric. Thus, when the Supreme Court of Virginia referred to prisoners in 1871 as “slaves of the State,” the description had more than rhetorical force. Going beyond the superficial similarity in legal standards, examining how the “cruel and unusual” standard was explicated in the context of slavery offers important insights to current debates within the Eighth Amendment. First, the contention by some originalists that the Punishments Clause does not encompass a proportionality principle is in tension with how courts interpreted the same language in the context of slavery. Indeed, relationships of subordination had long been formally governed by a principle of proportional and moderate “correction,” even though slavery in practice was characterized by extreme abuse. Second, to the extent that dynamic constitutional interpretation supports limiting criminal punishment according to “evolving standards of decency,” the comparative law frame used here raises questions as to how far our standards have evolved. This, in turn, should cause commentators and jurists to reconsider whether the twenty-first century lines we have drawn to regulate the constitutional bounds of punishment are adequate to advance the principle of basic human dignity that is thought to be at the heart of the Eighth Amendment.


Ilya Somin on Congress' Immigration Power
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Why the Migration or Importation Clause of the Constitution does not imply any general federal power to restrict immigration.  From the introduction:

Some readers of my recent Reason op ed arguing that, under the original meaning of the Constitution, Congress had no general power over immigration, have written to me, pointing to the Migration or Importation Clause, as evidence to the contrary. Some modern advocates of broad congressional power over immigration also cite it to support their position. But, at least under the original meaning of the Constitution, it does not.

I generally agree with the ensuing (extended) argument, though I think it might be stated more simply.  Saying that Congress cannot regulate migration prior to 1808 doesn't imply that Congress has full power to regulate migration; it only implies that Congress has some power to regulate migration (which can be exercised after 1808).  Congress appears to have some power to regulate migration through its foreign commerce power, because (I would say) it can prohibit or limit the ability of ships operating in foreign commerce to sell passages to migrants.  Thus it might be the case that Congress does not have power to regulate some migrants (e.g., those crossing by foot without assistance).  Or at least, no having this power is still consistent with the migration clause.  (I think it might be located elsewhere, however).

Sheldon Novick: The Original Understanding of 'This Constitution'
Michael Ramsey

Sheldon Novick (Vermont Law School) has posted The Original Understanding of 'This Constitution' on SSRN.  Here is the abstract:     

Methods of the New Originalism help us understand what sort of text the Constitution was understood to be when it was adopted. The text refers to itself, and so inquiries into the original understanding of the self-referential phrase “this Constitution” may illuminate the character of the document when it was ratified. Evidence of the usage of the time leads to the unsurprising conclusion that the Constitution of 1787-1789 was understood to be an account of a social compact — a political act — authorizing a new central government. In the original understanding, the Constitution authorized the creation of common-law courts. Judges and justices took their oaths, not to a document or a text, but to the federal, republican form and character (the “constitution”) of the government, and the truths on which it was founded. Judges reviewing the acts of political institutions were to be guided in their decisions, not by turning the aphoristic text of the Constitution into enforceable rules, but by judicial precedents and the maxims of justice and equality implicit in the structure and text of the Constitution, maxims expressed more fully in state constitutions and the Declaration of Independence. This is all familiar history, but it contradicts a premise of the New Originalism, an assumption that the Constitution was an enactment like a statute or contract, a text that judges must apply today according to its fixed terms to resolve disputes. Amendments to the Constitution were enacted as legislation and some, particularly the Fourteenth Amendment, were expected to be interpreted and applied like statutes, but the original Constitution of 1787-1789 was not understood in that way.


Strategy and Originalism
Mike Rappaport

Over at the Liberty Law  Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists.  Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution?  This is a difficult question.  Smith powerfully argues that a strategic perspective is a useful way of thinking about the problem.  Relying on this perspective, Smith argues for what he calls a strategic originalism.  I respond to Smith’s argument here.

I have also thought about strategic considerations.  I discuss one strategy for promoting originalism in my response to Smith:

Perhaps the biggest obstacle to securing support for originalism derives from the differing views of this interpretive approach from the Right and the Left. On the Right, originalism is seen as a constraint on judges’ imposing their values on the nation through judicial decisions. . .   [Those] on the Left does not see originalism as a protection against values imposed by those who disagree with them.

This Leftwing view of originalism is in part the result of the principles advocated by Rightwing  justices. Justices on the Right state that they will enforce the Constitution’s original meaning, not their own conservative or libertarian values. As a result, people on the Left do not fear Rightwing justices claiming to impose their own values.

But imagine if Rightwing justices sought to impose their own values on the Constitution—if, for example, conservative justices sought to prohibit abortion nationwide through constitutional interpretation rather than simply arguing that the Constitution permitted the states to decide the question. In this situation, the Left . . . would have to worry about judicial imposition of the Rightwing political agenda.

Under those circumstances, the Left might actually view the Constitution’s original meaning as protection, just as the Right does now.

How then might the Right get the Left to view originalism as protection?

An effective strategy from the Right might then seem to require that the Rightwing justices threaten to engage in judicial activism unless the Leftwing justices choose to follow the original meaning.

One possible way for the Rightwing justices to carry out their threat is by announcing in their dissent to the nonoriginalist decision that they will henceforth interpret this constitutional provision in a nonoriginalist way. If the liberal justices adopt the originalist interpretation of this provision in the future, however, then the Rightwing justice will conform to the original meaning as well.

While this would have some benefits, ultimately I recommend against this strategic approach:

It seems unprincipled for originalists not to follow the original meaning simply because nonoriginalists do not follow it. One of the most powerful advantages that originalists have is that they appear to be principled—they are seeking to consistently follow an intuitively attractive theory. If they behaved in an unprincipled way and pursued their own values, they would lose much of their appeal.

It is true that the originalists could argue that they are simply responding to the nonoriginalists’ behavior, and doing so in order to promote originalism. But I do not think this argument would be terribly persuasive. Instead of pursuing originalism, the originalists would now be pursuing nonoriginalism part of the time, which is a problematic way of promoting originalism. And it is by no means clear that the Constitution’s original meaning permits them to engage in this strategy.

In addition to Smith’s essay and my response, there is also the interesting response by the always engaging Gordon Lloyd and a soon to be posted response by Mike Greve.

Josh Blackman on the U.S. v. Texas Oral Argument
Michael Ramsey

At NRO, Josh Blackman: Obama Asks the Supreme Court to Rewrite His Immigration Policy.  

On November 20, 2014, President Obama announced the policy known as Deferred Action for Parents of Americans (DAPA). This executive action purported to rely on “prosecutorial discretion” to defer the deportations of up to 5 million aliens and grant them work authorization and other federal benefits. Critically, the memorandum announcing DAPA included this sentence: “Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.” (Emphasis added.)

Herein lies the conundrum: Aliens who receive relief under DAPA do not have “any form of legal status,” but at the same time they are “lawfully present in the United States.” During oral arguments in U.S. v. Texas, a perplexed Chief Justice Roberts asked Solicitor General Donald Verrilli this question: Is it the government’s position that “lawfully present does not mean you’re legally present”? Verrilli responded, “Correct.” A stunned Justice Alito stated that he didn’t “understand” how that was possible in light of the “English language.”


Recognizing resistance from the justices, Verrilli said, “If the Court thinks it’s a problem and wants to put a red pencil through [‘lawfully present’], it’s totally fine.” He expressly asked the justices to rewrite the Obama administration’s own policy, as if the justices were the president’s copy editor.

Professor Blackman doubts this is the Court's job:

Finally, if the DAPA memorandum is so problematic, and it should not have awarded “lawful presence,” absolutely nothing is stopping the president from issuing a new policy. During oral arguments, Justice Kagan stated, “It’s [the government’s] memorandum.” That’s exactly right. The government gets to interpret it or rewrite it whenever they wish. The Department of Homeland Security could have issued a new policy — minus “lawful presence” — in February 2015 after a federal court put DAPA on hold. Or they can do so now. Absolutely nothing prevents them from doing so. Secretary Johnson — who was sitting in the first row of the Court’s gallery — could have signed a new memorandum on the spot, deleting the “lawfully present” language.

The executive branch does not need the Court to do its dirty work. Or maybe the government is telegraphing what it will do if it loses this case — simply reissue the exact same memorandum, absent the phrase “lawfully present” — so it can implement the policy before the election. If this is indeed the plan, the Supreme Court should make clear that this further evasion of the separation of powers won’t work.

Aziz Huq & Jon Michaels: The Cycles of Separation-of-Powers Jurisprudence
Michael Ramsey

Aziz Z. Huq (University of Chicago Law School) & Jon D. Michaels (University of California, Los Angeles School of Law ) have posted The Cycles of Separation-of-Powers Jurisprudence (Yale Law Journal, Vol. 126, 2016, forthcoming) on SSRN.  Here is the abstract:      

The Supreme Court’s approach to the Constitution’s separation of powers is a puzzle. Although all Justices appear to agree on the doctrine’s goals, in almost every important line of cases the Court oscillates between two basic approaches of hard-edged rules and open-textured standards. Its seemingly erratic shifts cannot be wholly explained by changes in the bench’s personnel or methodological fads. This Article isolates and analyzes pervasive doctrinal cycling between rules and standards as a distinctive element of separation-of-powers jurisprudence. Breaking from previous scholarship critical of the Court’s zigzagging, we consider whether purposeful cycling between rules and standards might be justified as a judicial strategy for implementing the separation of powers. We develop a new theoretical account of the separation of powers in which doctrinal cycling can be justified on two key assumptions: First, the separation of powers promotes a plurality of normative ends, and second, it does so in the context of a more heterogeneous institutional environment than a focus on the three branches alone would suggest. Doctrinal cycling between rules and standards could be used, at least in theory, to manage normative pluralism and police this “thick political surround” when simpler, more straightforward regulatory strategies would fail. This rational reconstruction of the feasible judicial role in the separation-of-powers context provides a benchmark for evaluating observed doctrinal oscillations, and, more generally, determining whether courts possess the necessary institutional resources to promote separation-of-powers values.


A Textual Approach to Treaty Non-Self-Execution, Revised
Michael Ramsey

I have posted a revised version of my article A Textual Approach to Treaty Non-Self-Execution (2015 BYU L. Rev. 1639, forthcoming) on SSRN.  The revisions principally clarify the argument in response to comments and add a section assessing some representative recent self-execution/non-self-execution cases.  The central point of the latter is that the self-execution/non-self-execution distinction is not as hard as commentators seem to think it is.

Here is the abstract:

Conventional wisdom holds that the doctrine of non-self-executing treaties in the United States is conceptually confused and textually unjustified. This article disagrees. It argues that a coherent, text-based approach to non-self-execution is available and consistent with the Constitution’s text and with the Supreme Court’s leading non-self-execution decision, Medellin v. Texas.

To reach a satisfactory textual grounding for non-self-execution, it is necessary to reject two central ideas in leading non-self-execution dicta and commentary. The first is that non-self-execution means that some treaties are not supreme law of the land (or, as it is sometimes said, not part of federal law). As discussed below, that is not a possible reading of the Constitution’s text, which says that “all” treaties are the supreme law of the land (apart from treaty provisions that conflict with superior forms of law). The second is that the unilateral intentions or preferences of U.S. treatymakers can, without more, make a treaty unenforceable by courts. As discussed below, unilateral intentions and preferences cannot change the constitutional direction that judges “shall be bound” by treaties.

Rejecting these two propositions does not, however, reject the idea of non-self-executing treaties. This article understands “non-self-executing” to describe a treaty provision that does not of its own force provide a rule of decision for a U.S. court. This result may arise in various ways, but they share a common characteristic: the treaty provision calls for an action that, in the U.S. constitutional system, is not appropriate for courts to take. In this situation, the court is directly or implicitly instructed by the treaty’s text not to implement the treaty unless another branch provides guidance. Because the treaty is binding on the courts, this direction – contained within the treaty – is also binding on the courts. As a result, non-self-execution arises from the treaty’s text in combination with the U.S. understanding of the court’s judicial power.

This article attempts to outline the textual approach to non-self-execution in a relatively brief and summary form, relying on extensive scholarship on the Constitution’s text and history relating to non-self-execution. As such, it is designed as a “restatement” of textual approaches developed in part by others but presented here in a more simplified manner. Part I of the Article sets forth the basic constitutional rules. Part II explains how non-self-execution arising from a treaty’s text is consistent with the Constitution’s categorical rules on treaties’ status as law. Part III argues that the Court’s opinion in Medellin is consistent with a textual approach to non-self-execution.

Larry Solum on Constraint and Restraint
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory Lexicon tackles Restraint and Constraint in Constitutional Theory.  Here is the introduction:

The idea that judges should not unduly interfere in decisions made by the political branches is a familiar trope in both popular discourse about the Constitution and in constitutional theory.  One aspect of this idea connects with the notions of "judicial activism" and "strict construction" that are discussed in a previous Legal Theory Lexicon entry.  Another aspect of this discourse concerns the ideas of judicial restraint and constraint.

One of the difficulties with discussion of restraint and constraint is that these ideas have been imprecise and ambiguous.  Is restraint simply inaction?  Or does constraint have to do with the idea that courts should be bound by the constitution?  These two notions are not the same.  The constitution might require action that interferes with the political branches, but it might require inaction as well.

Thomas Colby has made a metalinguistic proposal to sort out the potential confusion.  Here is the way he put the suggestion:

(“[A]lthough originalism in its New incarnation no longer emphasizes judicial restraint--in the sense of deference to legislative majorities--it continues to a substantial degree to emphasize judicial constraint--in the sense of promising to narrow the discretion of judges. New Originalists believe that the courts should sometimes be quite active in preserving (or restoring) the original constitutional meaning, but they do not believe that the courts are unconstrained in that activism. They are constrained by their obligation to remain faithful to the original meaning.”).

Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).  Colby's idea is that we can stipulate that "restraint" refers to deference and that "constraint" refers to the a requirement of consistency with the constitutional text.

The remainder of this Lexicon entry develops Colby's proposal. [Ed.: with a helpful matrix].

I agree with Professor Colby's terminology, as does Professor Solum.  Note that originalism calls for constraint but does not necessarily require (or even allow) restraint.


Andre LeDuc: The Ontological Foundations of the Debate Over Originalism
Michael Ramsey

Andre LeDuc (independent) has posted The Ontological Foundations of the Debate Over Originalism (7 Washington University Jurisprudence Review 263 (2015)) on SSRN.  Here is the abstract:    

Because the participants in the debate over constitutional originalism generally understand the controversy to be over a matter of the objective truth of competing interpretations of the Constitution, they do not believe that their mission is to persuade the other side. When what is at stake is a matter of objective truth, subjective opinions are of less moment.

This Article begins the long overdue transcendence of our increasingly fruitless and acrimonious debate over originalism by articulating the tacit philosophical premises that make the debate possible. It demonstrates that originalism, despite its pretensions to common sense and its disavowal of abstruse philosophical analysis, is tacitly committed to three key ontological and linguistic premises. First, language represents the world. Second, propositions or statements are true if they accurately (truly) represent that world. Thus, propositions of constitutional law represent the constitutional world. As a consequence, propositions or statements of constitutional law are true if they accurately (truly) represent that constitutional world. Third, there is an ontologically independent Constitution that our constitutional interpretation describes. For the originalist, that objective Constitution is the semantic understanding of the constitutional provisions when they were originally adopted or amended. Moreover, surprisingly, originalism's critics are also committed to these same premises about the nature of language, the nature of truth and the existence of an objective Constitution. Originalism's critics assert that the objective Constitution has sources beyond the original understanding of its provisions.

These shared premises about the nature of language and the nature of the Constitution permit the debate over originalism to proceed as a debate about the objective truth of constitutional interpretations and the accuracy of each side's description of the objective facts about the Constitution. Because both sides of the debate believe there to be an objective answer to the questions they address, the debate can focus upon defending the account of the relevant interpretation rather than on persuading the other side. Understanding that fundamental dynamic to the debate helps explain why it has been so unproductive. Moreover, understanding that the debate over originalism is only possible if these premises are true highlights the underlying question whether such premises are indeed correct.

Also from Andre LeDuc : The Anti-Foundational Challenge to the Philosophical Premises of the Debate Over Originalism (Penn State Law Review, Vol. 119, No. 131, 2014).  Here is the abstract:      

The seemingly interminable tacit assumptions about the nature of language and the ontological status debate over originalism is grounded on of the Constitution. It assumes that language represents the world, that the Constitution is something that has an ontologically independent existence, and that propositions of constitutional law are true if they accurately represent the objective Constitution. This Article offers a radical critique of those apparently obvious, commonsensical premises. It presents an anti-representational, anti-foundational challenge to the premises underlying the debate over originalism.

First, building on the work of Richard Rorty and Robert Brandom in philosophy and Philip Bobbitt and Dennis Patterson in jurisprudence, it outlines how we might move beyond the notion of an ontologically independent, objective Constitution. The alternative is to understand our Constitution as constituted by our constitutional practices, particularly our practices of constitutional argument and decision. Second, this Article offers an analysis of propositions of constitutional law and their truth, that explains such statements without the notion of representing the objective Constitution and without the notibn that the truth of such proposition is a matter of the accuracy of the representation by such statements. Third, this Article presents and rebuts the arguments that might be made against such an approach. It concludes by showing how, in the face of this analysis, the tacit premises of the debate over originalism collapse and with them, the debate over originalism as we know it.


Ken Masugi on Justice Thomas on Evenwel
Michael Ramsey

At Liberty Law Blog, Ken Masugi: Justice Thomas: Mr. Republican.  From the introduction:

Once again Justice Clarence Thomas has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.

In 2010, in McDonald v. Chicago, he had protected the right to individual gun ownership by invoking the Fourteenth Amendment’s Privileges or Immunities Clause. Now he has concurred in the decision in Evenwel v. Abbott (2016), which unanimously affirms the state of Texas’ use of population (rather than being required to use eligible voters) as the basis for devising electoral districts.

Thomas’ bold concurring opinion, reviving as it does Article IV’s guarantee that each state shall have a republican form of government, opens up a vast field of possibilities for thinking about apportionment but also about free government generally. His aim in directing us to this clause is ultimately to build a more powerful case against the unconstitutional administrative state, the suppressor of separation of powers, federalism, and basic republican principles. Even more provocative is the basis he sees for the Republican Government Guarantee Clause: the Declaration of Independence.

For a thoughtful different view, Michael Dorf: Justifying One Person One Vote.


United States v. Texas on Monday (with Comment from Marty Lederman)
Michael Ramsey

The Supreme Court will hear arguments in United States v. Texas on Monday, April 18. Here is Lyle Denniston's preview of the case for SCOTUSblog.  At Defining Ideas, Michael McConnell assesses the case with sympathy for the challengers and an extensive historical discussion, concluding: 

Apart from its subject matter, the executive action challenged in this case precisely parallels James II’s use of the dispensing power. The Immigration and Naturalization Act defines persons who entered this country without authorization and do not fall into any of its specific exceptions as being here unlawfully. That includes the beneficiaries of the DAPA order. Among the consequences of unlawful presence are ineligibility for work permits and for many social welfare programs. Moreover, the INA expressly provides that every day a DAPA beneficiary spends in the United States should accrue as time under the individual’s unlawful-presence clock. These consequences were set by Congress for the purpose of discouraging illegal immigration. And unlike deportation, which necessarily involves enforcement discretion, these consequences are absolute—unless there is an explicit statutory exception, these consequences apply to every person in this country unlawfully.

Under the DAPA rule, some four million people who are unlawfully present in the United States under the statute have been given the dispensation to remain and to obtain work permits and social welfare benefits. Their unlawful-presence clocks do not run. This is not mere non-enforcement. It is not an exercise of prosecutorial discretion. It is not a matter of enforcement priorities. Like James II’s dispensations, DAPA permits “an individual . . . to be lawfully present in the United States,” notwithstanding the INA’s provisions to the contrary. Until such time as it might be revoked, its beneficiaries are no longer in violation of the law. Because the executive officials who promulgated DAPA are acting outside their statutory authority, and are making lawful what Congress has declared unlawful, they are in violation of the Take Care Clause of Article II.

In the New Republic, Simon Lazerus has a different view: Even Conservatives Agree on Obama’s Immigration Powers. Will the Supreme Court?  He points out:

Prominent conservative legal scholars and experts know that, as George Mason scholar and Obama critic Ilya Somin wrote at Volokh Conspiracy, “Obama’s decision to defer deportation is in line with those of past presidents, and well within the scope of his authority.” In Washington Examiner, Shikha Dalmia reminded “conservatives outraged” at the administration’s initiative that “whether they like it or not, existing immigration laws give the president vast discretion to temporarily legalize an unlimited number of foreigners.” University of Virginia professor Saikrishna Prakash, a former law clerk for Justice Clarence Thomas and a prominent specialist on separation of powers and presidential authority, has unequivocally stated that “President Obama has not suspended or dispensed any law” and “not violated his faithful execution duty.” In the same vein, on Volokh, Case Western Reserve Professor Jonathan Adler—architect of the potentially crippling challenge to ACA tax credits rejected last year in King v. Burwell—explained that, in “[i]mmigration law ... Congress has given the executive wide latitude.” (Adler signed a friend-of-the-court brief supporting the anti-DAPA challengers’ standing to bring their suit, but not their claim, on the merits that DAPA is unlawful.)

His key paragraph is this one, though:

Finally, opponents impugn DAPA because the new program authorizes its beneficiaries to apply for work authorization. But the authority for deferred action recipients to work, enroll in Social Security, and receive certain other work-related benefits comes not from DAPA, but from Reagan administrationregulations subsequently endorsed by lopsided bipartisan congressional majorities in 1986 legislation. Shortly thereafter, the Reagan administration denied a request to repeal its employment authorization regulation and it has since then been available to, and repeatedly used by, recipients of deferred action treatment, such as those covered by DAPA.

He notes two other main attacks on DAPA that I agree are unpersuasive.  But this one strikes me as the potentially decisive one, and it directly engages Professor McConnell's main point. If DAPA changes peoples' legal status, as Lazarus seems to concede it does, then it must have direct authorization by statute (mere invocation of prosecutorial discretion isn't enough).  But if it does have direct authorization by statute, that should be an answer to Professor McConnell's objection, and should be sufficient to uphold the policy.

RELATED:  Here (via Josh Blackman) is an originalist-oriented amicus brief filed in support of the challengers, from Josh Blackman, Randy Barnett, Ilya Shapiro, Jeremy Rabin and the Cato Institute.  From the core of the argument:

For two primary reasons, DAPA is inconsistent with the president’s duty to take care that the laws be faithfully executed. First, the circumstances that gave rise to DAPA demonstrate that it is not a good-faith exercise of prosecutorial discretion, but instead a blatant effort to nullify a law that the president sought unsuccessfully to repeal.

Second, DAPA is not an execution of the law, but amounts to a legislative act: the granting of lawful presence to a class of millions to whom Congress expressly denied that status. Further, DAPA is not consonant with congressional policy, nor has Congress acquiesced in it. On the contrary, it is a “measure[] incompatible with the expressed . . . will of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Ordinarily, this would mean that the president could “rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.” Id. But as Congress has virtually the entire power at issue here—and there are no claims of inherent executive power—that leaves the President with nothing.

Again, it seems to depend on whether Congress has authorized the granting of "legal status" (whatever that means) or not.

UPDATE:  Josh Blackman has  further interesting post here: SG: “Lawful Presence” is really “Tolerated Presence”.

FURTHER UPDATE:  Marty Lederman comments:

Michael McConnell offers a very nice historical distillation demonstrating what no one (least of all the President) denies -- namely, that the President doesn't have a dispensation power to render lawful conduct that is unlawful, or to authorize others to violate the law. 

But DAPA doesn't do any such thing, and so the entire argument is premised on a mistake of law.  For greater (perhaps excruciating) detail, see here.
I also have a post on the standing question that may well be dispositive, here.


Bernadette Meyler: The Politics of the Declaration of Independence Before the Civil War
Michael Ramsey

Bernadette A. Meyler (Stanford Law School) has posted Between the States and the Signers: The Politics of the Declaration of Independence Before the Civil War (Southern California Law Review, forthcoming) on SSRN.  Here is the abstract:      

It is almost impossible to conjure the thought of the Declaration of Independence today without also raising the specters of the signers. Commonplace invocations of “John Hancock” stand in for the prototypical signature, and elementary school children throughout the country learn details about the lives of the signers. The signers did not, however, authorize the Declaration solely for themselves, but rather on behalf of the “People.” 

At the same time as autograph collectors began accumulating the signatures of the signers of the Declaration of Independence in the early nineteenth century, the political contest over the “People” of the United States drew the Declaration into its arguments. Controversy focused, in particular, on whether this people could be considered united from the Declaration onwards or consisted in the people of the several states. Drawing on two periods when discussions of the Declaration came to the fore, this Symposium Article contends that the figure of the signers — and their signatures — became a crucial weapon in a battle over which people had authorized not only the Declaration but also the U.S. Constitution.

(Via Dan Ernst at Legal History Blog).


A Response to Gregory Diskant on Appointments
Seth Barrett Tillman

Gregory L. Diskant’s theory—that, after 90 days, in the absence of concrete Senate action, the President can act alone and appoint Judge Garland to the Supreme Court—does not pass constitutional muster.

First, “Diskant’s” theory is—when all is said and done—Professor Matthew C. Stephenson’s theory. In 2013, in Yale Law Journal, Professor Stephenson, of Harvard Law School, argued that Senate inaction worked a waiver or implied consent subject to a 90-day rule of thumb.  See Matthew C. Stephenson, Can the President Appoint Principal Executive Officers Without a Senate Confirmation Vote?, 122 Yale L.J. 940, 973 (2013) (“I would not extend this proposal to judges; for judicial appointments, it would make more sense to read ‘Advice and Consent’ as requiring an affirmative confirmation vote.” (emphasis added)); id. at 941–43 (explaining that theory of implied consent does not apply to appointments to the federal judiciary); id. at 971 n.98 (citing Seth Barrett Tillman’s scholarship). But Stephenson squarely stated that his theory, to the extent it worked at all, only worked for Executive Branch positions, and not in regard to judicial appointments, including Supreme Court appointments.

The second reason “Diskant’s” position fails is that it relies on an analogy to waiver in the context of litigation adjudicating individual rights.  See generally Letter from Seth Barrett Tillman to Professor Anonymous, The Quorum Clause (July 2, 2014), available at http://ssrn.com/abstract=2462012 (discussing which constitutional rules and standards are subject to waiver)).  But neither Senate action nor inaction implicates any individual rights. Therefore the analogy fails. If the House passes a bill, even a money bill which must originate in the House, and the Senate wholly fails to consider the bill, who in his right mind believes the House and/or President can construe the House bill as a proper federal statute, and then proceed to implement the bill as if the bill had also passed the Senate? To put it another way, generally, constitutional procedures restricting public bodies cannot be waived precisely because the interests they protect do not belong to the institution, but exist to protect the public. In short, Senate inaction cannot waive actual advice and consent.

The third reason “Diskant’s” position fails is because it was rejected by Marbury v Madison and all subsequent legal authority (at least, until Professor Stephenson’s article). In Marbury, Chief Justice Marshall, writing for a unanimous Supreme Court in 1803, characterized the nomination and appointment process as “completely voluntary” and “voluntary,” respectively.  See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155 (1803) (Marshall, C.J.).  Likewise, in 1999, the Clinton Justice Department’s Office of Legal Counsel issued a memorandum which characterized every step of the nomination and appointments process as “discretionary.” This memo expressly included Senate advice and consent.  See Appointment of a Senate-Confirmed Nominee, Vol. 23 Opinion Office of Legal Counsel, page 232 (1999) (Koffsky, Acting Deputy Assistant Attorney General).  If something is “voluntary” or “discretionary,” it means you don’t have to do it. After more than 200 years of unbroken practice requiring actual affirmative Senate consent before the President may make a lifetime appointment to the federal judiciary, it is now too late in the day to play let’s pretend, and to impose an arbitrary and fixed 90-day time limit on Senate action. Such time limits have no support in the Constitution’s text, and, if for no other reason, that should end the legal discussion. Of course, if the American People believe the President or Senate have erred politically, then that wrong can be corrected at the next regular election—and only in that manner.

Finally, the same 1869 federal statute which mandated a 9-member Supreme Court has also established a quorum of only 6 members. See Act to Amend the Judicial System of the United States, ch. 22, § 1, 16 Stat. 44, 44 (1869), codified at 28 U.S. Code § 1. Thus, there is no rush to fill any Supreme Court vacancy, in spite of the fact that some future cases might end up tied 4-to-4. Given that Congress has set a quorum of 6 members, it stands to reason that Congress expected some Justices: to recuse themselves in specific cases; to take temporary leave to fulfil other government duties; to recuperate for a reasonable time if ill; and to die.  (Consider Justice Jackson was on leave from the (9-member) Supreme Court, when he appeared as Chief U.S. prosecutor at the Nuremberg trials. Was deadlock a consideration during his absence? Likewise, consider that President Washington appointed Chief Justice John Jay envoy to Great Britain. Jay accepted the diplomatic post, but he did not resign from the Supreme Court until after he negotiated the so-called Jay Treaty (signed Nov. 1794; ratified 1795). See Notice of John Jay's Powers (1794) [here]; Jay Treaty (signed 1794) [here].)  The Court, as a functioning institution, goes on, at least, as long as it has 6 members, and surely Congress must have understood that a 6 or 8 member Court can deadlock.  Cf. Michael Ramsey, here (“Actually, while the Constitution creates the Supreme Court, Congress creates the ninth seat on the Court. Just as Congress could constitutionally abolish the lower federal courts, it could constitutionally abolish the ninth seat on the Court.”)  Indeed, historically, there have been lengthy periods of time where the Court, by statute, was expressly composed of an even number of members. For example, when Chief Justice John Marshall was appointed to the Supreme Court, its size was set to 6 members by statute. To the extent worries about deadlock are a consideration, it is a political consideration for the American People, not a legal consideration, constitutional or otherwise.

(Cross -posted at the New Reform Club.)

MIKE RAMSEY ADDS:  Not to pile on, but Garrett Epps at The Atlantic writes:

[Diskant's argument] does not simply torture the Constitution’s text and history, it waterboards it. The words “advice and consent” in Article I of the Constitution may seem vague, but in context, they aren’t. Senate confirmation is required not only for judges, but for “Ambassadors, other public Ministers and Consuls … and all other Officers of the United States, whose Appointments are not herein otherwise provided for.” Even a Senate working in good faith could not necessarily confirm every presidential nominee within a fixed time period, and the text sets no deadline for these appointments. Elsewhere, the Framers did provide deadlines: For example, neither house of Congress may “without the Consent of the other, adjourn for more than three days.” A bill sent to the president for signature will become law unless he signs or vetoes it “within ten days (Sundays excepted).” Presidents also have the “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” The Framers understood deadlines, and they neither set one, nor implicitly granted the president power to set one, for confirmation.

Can Custom Create a Constitutional Duty?
Michael Ramsey

Robin Bradley Kar and Jason Mazzone have substantially revised and reposted the article I noted earlier, now called What History and the Constitution Really Say About President Obama's Power to Appoint a Replacement for Justice Scalia (NYU Law Review: Online Features (2016)).  Here is the revised abstract: 

After Justice Antonin Scalia’s death, politicians wasted no time before teeing up a political battle over his replacement. Republican Senators—led by Senate Majority Leader Mitch McConnell—immediately announced that they will not consider or vote on any replacement nominees from the current President. Instead, Senate Republicans seek to transfer President Obama’s power to appoint Justice Scalia’s replacement to the next elected President. This plan has generated substantial debate, but the debates have not yet engaged with some of the most important historic, pragmatic, and constitutional risks of the plan. With Judge Merrick Garland’s nomination to the Supreme Court pending, this article seeks to bring greater attention to these risks.

We begin with history because, for two reasons, history provides a crucial source of insight into the propriety of the Senate Republicans’ current plan. First, the history of past Supreme Court appointments sheds light on long-standing senatorial traditions and practices of fair dealing. Second, history can sometimes ripen into a constitutional rule that affects the best interpretation of constitutional text and structure. Although many commentators have discussed the history of Supreme Court appointments in relation to the present controversy, they have often done so in partial or misleading manners. We therefore begin with an examination of the entire history of Supreme Court appointments, which aims to set the historical record straight.

We show a striking fact that has not yet been publicly recognized: there have been 103 prior cases in which an elected President has faced an actual vacancy on the Supreme Court and began an appointment process prior to the election of a successor. In all 103 cases, the President was able to both nominate and appoint a replacement Justice—by and with the advice and consent of the Senate. This is true even of all 8 such cases where the nomination process began during an election year. By contrast, there have been only 6 prior cases in which the Senate pursued a course of action that—like the current Republican Plan—deliberately sought to transfer a sitting President’s Supreme Court appointment power to a successor. In all 6 such cases, there were contemporaneous questions about the status of nominating President as the most recently elected President. The historical rule that best accounts for entrenched senatorial practices over the entire course of Supreme Court appointments is thus the following: while the Senate has the constitutional power to provide advice and consent to particular Supreme Court nominees and reject them on a broad range of grounds, the Senate may only withhold its advice and consent from all nominees from a particular President in order to deliberately transfer a President’s Supreme Court appointment powers to a successor in the highly unusual circumstance where the President’s status as the most recently elected President is in doubt. This historical rule is specific to the context of Supreme Court appointments. 

Given this two-century long pattern of historical practice, the Senate Republicans’ current plan marks a much greater departure from historical precedent than has thus far been recognized. There is, however, still a further question whether the historical rule we uncover reflects a mere senatorial tradition, which should govern internal senatorial practices of fair dealing, or has further ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure. In either case, the consequences are serious. After describing both possibilities, we conclude that the Senate should therefore rethink its current plan so as to avoid a range of historical, pragmatic and constitutional risks. The Senate should instead do what it has always done in similar past circumstances: it should proceed to full Senate consideration leading to a vote on Judge Garland or any other nominees that President Obama submits in a timely manner.

This represents a considerable retreat from their earlier position (and a big improvement, in my view) -- they now focus mostly on practice rather than on the Constitution's text, and are tentative on the question whether the practice they identify is merely a "senatorial tradition."

For me, this raises an interesting theoretical question I had not considered before.  Is it possible for custom to create a constitutional limitation that does not exist in the Constitution itself?  Constitutional custom, of course, is often invoked, especially in separation of powers debates.  But the paradigm is for custom to relax stricter separation of powers rules apparently imposed by the Constitution.  The most cited invocation of custom, for example, is Justice Frankfurter's "historical gloss" in the Steel Seizure case, where he contended that Congress' implied consent to a longstanding executive practice might convey power to the executive even where the Constitution did not expressly do so.  Most other examples I can think of are similar: presidential war powers (the President is arguably allowed to use military force in ways not contemplated by the original Constitution); executive agreements (the President can make international agreements without the Senate's consent in ways not contemplated by the original Constitution); independent agencies (Congress can create agencies protected from presidential oversight in ways not contemplated by the original Constitution); recess appointments (per Noel Canning, President can make recess appointments in ways not contemplated by the original Constitution).

Professors Kar and Mazzone suggest something very different: that customary practice might create a constitutional limit on one branch's actions that the original Constitution does not impose.  Is this an argument that is commonly made?  I cannot think of many examples.  Consider, for example, the longstanding practice (before 1940) that a twice-elected President would not stand for election a third time.  Did this practice create a constitutional rule where one did not previously exist, or was it just a practice?  I would say the latter -- it took the 22nd Amendment to make it a constitutional rule.  (Otherwise Franklin Roosevelt's last two terms were unconstitutional, which I think Professors Kar and Mazzone probably do not want to claim).

Among other problems with finding a limiting rule from practice, it's hard to know what the people creating and following the practice think about it.  If they themselves do not think of it as a constitutional rule, but only as a courtesy, then it can't become a customary rule.  In international law, where limits do arise from custom, this is reflected in the idea of "opinio juris" -- the practice isn't binding unless the relevant actors think it is binding.  So even if Kar and Mazzone are right about the practice, is there any evidence that the Senate in following the practice thought it was creating a binding rule?

To their credit, Kar and Mazzone acknowledge the "question whether the historical rule we uncover reflects a mere senatorial tradition, which should govern internal senatorial practices of fair dealing, or has further ripened into a constitutional rule that should inform the best interpretation of constitutional text and structure."  I would think that at minimum the burden is on them to show "ripening."


New Jersey Court Finds Cruz Eligible, Cites Originalism Blog
Michael Ramsey

Williams v. Cruz, per New Jersey Administrative Law Judge Jeffery Masin.  The conclusion:

As demonstrated above and in the thoughtful examinations of the scholars whose materials are mentioned herein, it must be acknowledged that the arguments against finding a child born outside the United States to a non-diplomat or non-military citizen of the United States are not facetious and the issue can never be entirely free of doubt, at least barring a definitive ruling of the United States Supreme Court. While absolute certainty as to this issue is only available to those who actually sat in Philadelphia and themselves thought on the issue, having weighed the arguments as they are presented by those trying to understand the Framers’ intent, I CONCLUDE that the more persuasive legal analysis is that such a child, born of a citizen-father, citizen mother, or both, is indeed a “natural born Citizen” within the contemplation of the Constitution. As such I CONCLUDE that Senator Cruz meets the Article II, Section I qualifications and is eligible to be nominated for President. His name may therefore appear on the New Jersey Republican primary ballot.

It's a long and thoughtful opinion that explores the academic scholarship and commentary on both sides.  And, yes, it does cite the Originalism Blog (and my draft article).  I believe this is the first time the Originalism Blog has been cited in a judicial opinion, so thank you, Judge Masin.  Also, this of course is my favorite line in the opinion: "Ramsey’s arguments are persuasive."  Hope that doesn't get overturned on appeal.

Thanks to William Rawle for the pointer -- he adds: 

Judge Masin is familiar with the subject of natural born citizen as he ruled in 2012 that President Obama was a natural born citizen.  That ruling is here.

I suspect his ruling in this case will be widely cited in future Cruz eligibility cases.
RELATED:  Sidney Allen Martin II (Sullivent Law Firm) has posted A Foreign Born Citizen is a Natural Born Citizen and Eligible to Be President: A Legalist View of the Constitution on SSRN.  Here is the abstract:
A natural born citizen is a person who is a citizen at birth by virtue of birth under the laws in effect at the time of birth as enacted by Congress pursuant to its power to make a uniform rule of naturalization. Neither British common nor statutory law is determinative although the First Congress generally followed the example of Parliament in extending natural born citizenship to the children born to American citizens in foreign countries. Under existing law, Ted Cruz was a natural born citizen as the time of his birth in Canada and is eligible to be President.
Interestingly, this study rejects my reliance on British practice and concludes that "The plain meaning of [the relevant constitutional clauses] taken together is that a person to be eligible to be President must be born a citizen under the immigration law in effect at the time of his birth."
ALSO:  Another possibly related source from Seth Barrett Tillman:
William Alexander Duer, Outlines of the Constitutional Jurisprudence of the United States§ 652, at 168 (New York, Collins and Hannay 1833):

All persons born out of the jurisdiction of the United States, are terms Aliens; but there are some exceptions to this rule, derived from the ancient English law; as in the case of children of public Ministers born abroad, whose parent owed not even a local allegiance to the foreign power; and all children born abroad of English parents, were considered as natives of England, if the father went and continued abroad in the character of an English subject.” (emphasis added)).

UPDATE:  At Volokh Conspiracy, Ilya Somin comments on the New Jersey ruling here.


Thomas Colby: In Defense of the Equal Sovereignty Principle
Michael Ramsey

Thomas Colby (George Washington University Law School) has posted In Defense of the Equal Sovereignty Principle (Duke Law Journal, Vol. 65, 2015) on SSRN.  Here is the abstract:      

The Supreme Court of the United States based its landmark decision in Shelby County v. Holder on the proposition that the Constitution contains “a fundamental principle of equal sovereignty among the States.” For the central holding of a blockbuster constitutional case, that assertion was surprisingly unsupported. The Court simply declared it to be true, and made little effort to substantiate it. Naked as it was, the Court’s conclusion prompted savage criticism not only from the left, but also from the right. The consensus critical reaction was epitomized by Judge Richard Posner’s remark that “the court’s invocation of equal sovereignty is an indispensable prop of the decision. But...there is no doctrine of equal sovereignty. The opinion rests on air.” Critics also worried that, because there are countless federal laws that can be said to treat the states disparately, the Court’s brand-new equal sovereignty principle is, as Justice Ginsburg put it in her strident dissent, “capable of much mischief.” This Article contends that the critics of Shelby County are only half right — and that the Shelby County majority, despite its cursory analysis, is half right too. The critics are correct that the Court seemingly pulled the equal sovereignty principle out of thin air — that it played a little too fast and loose with precedent and failed to wrestle adequately with constitutional text, structure, and history. Nonetheless, this Article concludes — after performing the thorough examination of the traditional sources of constitutional law that was missing from the ipse dixit of Shelby County — that there is indeed a deep principle of equal sovereignty that runs through the Constitution. In James Madison’s words, the Constitution contemplates “a government of a federal nature, consisting of many coequal sovereigns.” Properly understood, however, the equal sovereignty principle is not a guarantee of state equality in all respects. It guarantees only equal sovereignty — equal capacity for self-government — which makes it more fundamental, but also less expansive, than critics have feared.

(Via Larry Solum at Legal Theory Blog, who says "Important paper on an important topic.  Highly recommended. Download it while it's hot!").


Cass Sunstein: Antonin Scalia, Living Constitutionalist
Michael Ramsey

Cass R. Sunstein (Harvard Law School) has posted Antonin Scalia, Living Constitutionalist (Harvard Law Review, forthcoming) on SSRN.  Here is the abstract:      

Justice Antonin Scalia was a vigorous defender of originalism, but in some of his most important opinions, he was a superb practitioner of living constitutionalism. Two of the best examples are his majority opinions in Lujan v. Defenders of Wildlife (involving standing) and Lucas v. South Carolina Coastal Council (involving “takings”). His affirmative action opinions fall in the same category, and District of Columbia v. Heller, though written in originalist terms, can easily be seen as a moral reading of the Second Amendment. One lesson involves the gravitational pull of precedents, which can draw judges away from their preferred methodologies. The larger lesson is that moral readings of the Constitution are exceptionally difficult to avoid in specific cases, even for judges who abhor them in general.

Has the Senate Waived Its Objections to the Garland Nomination?
Michael Ramsey

This Washington Post op ed by Gregory Diskant is getting more play than it probably deserves, given the weakness of the arguments.  Its basic point is that by failing to vote on the  Garland nomination, the Senate has failed to do its constitutional duty and so should be deemed to have waived its ability to refuse consent.  Accordingly, the President can make the appointment anyway.  For some sharp criticisms, see here by Ilya Somin ("wrong for multiple reasons"), here by Jonathan Adler ("an argument that is extremely hard to take seriously"), and here by Ed Whelan ("Gobsmackingly Stupid Op-Ed").

I agree.  The first problem, of course, is that the Senate does not have any constitutional duty to do anything (as I argue here).  The second problem is that, even if the Senate has a constitutional obligation to give advice and signal consent/non-consent, it has done so, through its majority leader and judiciary committee chair.  Nothing in the Constitution says that the Senate must signal non-consent through a formal vote (and again as I argue here) the Constitution (Art. I, Sec. 5) gives the Senate the power to determine the "Rules of its Proceedings."

But even assuming the Senate does have a duty to hold a vote, nothing in the Constitution suggests that the remedy for failure to hold a vote is for the President to proceed with the appointment anyway.  To the contrary, when the framers thought a failure to object should constitute a waiver, they spelled out the procedure expressly.  Article I, Section 7, states that a bill that has passed the House and Senate is sent to the President, and "[i]f he approve[s] he shall sign it, but if not he shall return it, with his Objections to that House it which it shall have originated."  (Note: this is how the Constitution describes a duty to act -- quite unlike the phrasing of the Senate's role in appointments).  Then it continues: "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it..."  

That is how the Constitution establishes a waiver by failure to act.  The fact that the framers wrote a waiver-by-failure-to-act into the presentment clause shows they did not think it was implied merely by creating a duty to act.  The fact that they did not write such a waiver into the appointments clause shows that, even if that clause establishes a duty to act, it does not imply a waiver-by-failure-to-act.

If Diskant had any founding era commentary or any subsequent appointments practice in support, perhaps it would be a different matter.  But he doesn't, and doesn't claim otherwise.

Maybe it is possible to read the appointments clause as Diskant proposes (though I doubt even that).  But constitutional interpretation is not (or should not be) merely an exercise in the possible.  The question is not what reading is possible; it is what is the most likely meaning of the clause.  I see no way to call his reading the most likely one.

(Thanks to Michael Perry for the original pointer on the Diskant article and to Professor Somin for the link to my earlier arguments).


Against Superfluousness
Andrew Hyman

If we discard a word of the Constitution as superfluous (i.e. surplusage) without a compelling reason, then trouble's ahead, because the anti-surplusage canon is essential to interpreting the document, just as it was essential to writing the document.  In particular, admitting superfluousness into the interpretation of the Natural Born Citizen Clause would weaken the canon in a way that could not be limited to that clause alone.

Mike Ramsey asserts that the word "natural" is essentially superfluous in the Natural Born Citizen Clause, but there is evidence to the contrary --- evidence that this word was originally understood in the 1780s to mean "native."  I previously quoted James Iredell from the North Carolina Ratification Convention in July 1788: "No man but a native, or who has resided fourteen years in America, can be chosen president."  To this, I can add Tench Coxe, who publicly wrote in September 1787 that the president will be "born among us."  

The word "natural" was not inserted into the Constitution with a hyphen; it appeared as "natural born" instead of "natural-born."  So, the standalone meaning of this word is applicable to the NBC Clause.  In his famous and immense dictionary of 1755 (not merely the shortened version of 1756), Samuel Johnson declined to explicitly define either compound term, explaining: "Compounded or double words I have seldom noted, except where they obtain a signification different from that which the components have in their simple state."  Thus, the terms "natural born" and "natural born citizen" use the word "natural" in a way that signifies its standalone meaning. 

Johnson defined a "natural" as a "native," and it is impossible to believe that that understanding was merely coincidental with the interpretations of Iredell and Coxe.  One can quibble that Johnson (like Iredell) equated the word "native" to the noun "natural" rather than to the adjective "natural," but this is a weak argument (even if we assume that the word "natural" is used as an adjective in the NBC Clause) for a couple different reasons.  First of all, Johnson said that he did not diligently seek to include, and often omitted, material that was "formed by a constant and settled analogy" like the words "greenish" or "dully" or "vileness," and readers of that era would likewise have assumed that a native person was a native, and vice versa.  They also would have assumed that the word "natural" in the NBC context means the same thing as the root of the word "naturalize" which is a word that Johnson defined in terms of "native subjects".  Secondly, there is plenty of evidence, quite apart from Johnson, that the word "natural" was used as an adjective -- not merely as a noun -- synonymous with "native" (e.g. we find from the year 1585 "his owne naturall countrey," and from the year 1657 we find "have the publick service in their natural tongue").

I've already pointed out previously that the word "native" signified not just inhabitants but also offspring, in the eighteenth century.  So, Mike and I ultimately reach the same conclusion about the eligibility of someone like Ted Cruz (who was born among the people of the United States by virtue of having a mother who was born and grew up in Delaware).  But it's important how we get to that result, and I would not abandon the non-superfluousness canon.  The actual situations where Mike and I reach a different result under the NBC Clause are difficult to imagine; one example would be if Congress extends birthright U.S. citizenship to all children and grandchildren of the King or Queen of England even though the offspring are born outside the U.S. without any U.S. citizen parent.  That sort of legislation is extremely unlikely now, but perhaps not so easily dismissed in 1789.  And in the future it could become less unlikely, given the congressional penchant for granting citizenship via private bills.

Steven Lubet Does Not Understand Originalism
Michael Ramsey

At The Faculty Lounge, Steve Lubet (Northwestern) criticizes originalism with reference to Justice Alito's use of the word "meretricious" in his Evenwel v. Abbott concurrence.  (Alito described the majority as adopting a "meretricious" argument).  As Professor Lubet points out, meretricious can mean just superficially attractive or it can mean, more strongly, tawdry or false in the manner of a prostitute.  Apparently this proves originalism is wrong:

My post on Justice Alito’s concurring opinion in Evenwel was a critique of his jurisprudence, not his vocabulary.  Some judges and academics claim to be able to determine the “original public meaning” of words that were written over 200 years ago, as though that were something easily accessible.  In fact, we end up with law office history, produced by the research of clerks – almost none of whom are trained as historians – who trawl through selected sources until they find something they can use.  To the contrary, and as a historian, I would say that “original public meaning” is at best elusive, usually ambiguous, and frequently unobtainable – especially when research is confined to the relatively short period between the certiorari grant and the opinion.

This is well illustrated, I think, by Alito’s reference to the Solicitor General’s, and the majority's, “meretricious argument."  What is the original public meaning of “meretricious,” and how might it be interpreted by law clerks fifty or one hundred years from now?  Were they to consult 2016 dictionaries, they might well conclude that Alito meant it as a biting insult, comparing his colleagues to prostitutes, rather than as a mild rebuke about the superficiality of their position.  

Even from today’s perspective, there is no single definitive meaning of the word.  If one were to call a political candidate meretricious – and I am not naming names – many would understand it to mean whorish. The same word applied to a SCOTUS opinion means something quite different.  Discerning the “original public meaning” of the term would be futile because it is highly variable and contingent.

As I wrote in my original post, I realize of course that Justice Alito intended the most benign meaning when he wrote his concurrence.  But that is precisely the problem with claims to have discovered original public meaning in the words of a statute or the Constitution – they are inherently subjective and contingent.

Professor Lubet -- who is an especially incisive thinker on many topics, as his Faculty Lounge posts often reflect -- appears not to understand originalism and not to have made any effort to understand it.  No originalist thinks that there is a "single definitive meaning" of any word.  All originalists think that the meaning of any word is "variable and contingent" -- that is, that it depends on context.  The question of the original public meaning of the word "meretricious" in Alito's concurrence is necessarily a question of its meaning in the context in which it was used -- that is, in a Supreme Court opinion, with reference to an opposing legal argument, by a careful and dignified user of legal language.

In that context, as Lubet himself acknowledges, it's perfectly clear what Justice Alito meant.  Of course Alito did not mean that the majority opinion was tawdry in the manner of a prostitute.  Given the context, no reasonable person would think otherwise.  Although meretricious may mean several things -- and perhaps "tawdry" is even the primary meaning  -- my guess is that the vast majority of times "meretricious" has been used to describe an argument it means, quite obviously, not "tawdry" but "superficially attractive."

So this example ends up proving the exact opposite of what Lubet claims: words that have ambiguous meanings in the abstract may have clearly identifiable meanings in context.

Professor Lubet's secondary point is somewhat more sensible, but only barely.  He says that people 100 years from now might misunderstand Alito's comment, given the multiple dictionary meanings of meretricious.  In the abstract, no originalist would deny the difficulty of understanding comments made long ago.  Those of us whose scholarship focuses on such questions know how hard they can be.

But again, Lubet's example tends to prove the opposite of what he thinks it does.  Does anyone suppose that a serious reader 100 years in the future will read Alito's concurrence and conclude: most likely, he was calling the Justices in the majority prostitutes?  Of course not.  Any sensible future reader will do exactly what a current reader does: consider the word's multiple meanings and decide, based on the context in which it was used, which meaning seems most likely to be the one intended by the speaker and understood by readers of the time.  And no one undertaking that inquiry would conclude that the most likely meaning is anything other than "superficially attractive."

True, this process may sometimes be harder for future readers than for current readers.  Contra Lubet, no originalist claims that all things written in the distant past are "easily accessible."  But actually, in this case, I think Alito's meaning will be easily accessible to anyone who considers the public meaning of the words in the context in which they were written, even in 100 years.  Even a superficial assessment of the context makes it obvious which of the word's meanings to chose.

I don't mean to be too hard on Professor Lubet, who -- as I've said -- is a refreshingly critical thinker on many matters.  But I think his post illustrates a broader point about many criticisms of originalism: they make no effort to understand what originalism is, and depend on superficial (meretricious?) caricatures to make their point. 



David Sloss: The Death of Treaty Supremacy
Michael Ramsey

David L. Sloss (Santa Clara University School of Law) has posted Introduction: The Death of Treaty Supremacy: An Invisible Constitutional Change (from D. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change, Oxford University Press, 2016, forthcoming) on SSRN.  Here is the abstract:     

This book provides the first detailed history of the Constitution’s treaty supremacy rule. It describes a process of invisible constitutional change that has previously escaped the notice of historians and legal scholars. The traditional supremacy rule provided that all treaties supersede conflicting state laws; it precluded state governments from violating U.S. treaty obligations. Before 1945, treaty supremacy and self-execution were independent doctrines. Supremacy governed the relationship between treaties and state law. Self-execution governed the division of power over treaty implementation between Congress and the President.

In 1945, the United States ratified the UN Charter, which obligates nations to promote human rights “for all without distinction as to race.” In 1950, a California court applied the Charter’s human rights provisions and the traditional treaty supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had effectively abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives mobilized support for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker’s supporters achieved their goals through de facto constitutional change. The de facto Bricker Amendment created a novel exception to the treaty supremacy rule for non-self-executing (NSE) treaties. The NSE exception permits state governments to violate NSE treaties without authorization from the federal political branches. The transformation of the treaty supremacy rule has significant implications for federal supremacy, U.S. foreign policy, and U.S. compliance with its treaty obligations.

I've read most of the book in prior draft versions, and it is an important and substantial contribution.  In addition to providing interesting insights on the constitutional status of treaties, it raises broader questions about the modes of constitutional change.

My thoughts on treaty supremacy and self-execution (which are similar but somewhat different) are here.


Two from James Pfander on Standing
Michael Ramsey

James E. Pfander (Northwestern University School of Law) has posted Standing to Sue: Lessons from Scotland's Actio Popularis (Duke Law Journal, forthcoming) on SSRN.  Here is the abstract:      

Much of what we think we know about the judicial power in the early Republic comes from the history of English common law. Our focus on the common law seems natural enough: Blackstone’s commentaries on the laws of England shaped many an antebellum lawyer’s notion of legal practice and jurists in the twentieth century quite deliberately pointed to the courts at Westminster in discussing the origins of judicial power in America.

An emerging body of scholarship has come to question this single-minded focus. Litigation in eighteenth century America was an eclectic affair, also drawing on the practices of the courts of equity and admiralty, which relied on Romano-canonical alternatives to the common law writ system. Recognizing an inquisitorial role for judges and often relaxing strict adversary requirements in the issuance of investitive decrees, these courts registered legal claims and tested the boundaries of official authority.

This Article examines the rules of standing to sue that emerged from one important court’s reliance on civil law modes of practice. The Scottish Court of Session heard cases both in law and equity and early developed a declaratory practice that allowed litigants to test their rights in a setting where no coercive judgment was contemplated. While the Scots imposed standing limits in private litigation – or what the courts referred to as title and interest to sue – they also permitted individuals to bring an actio popularis, or popular action, in certain circumstances. The Scottish actio popularis allowed individual suitors to press a legal claim held in common with other members of the public. By offering an account of Scots practice, this paper illuminates a remarkably mature but long ignored body of standing law, draws upon Scottish ideas to interrogate the rules of standing in the United States, and extends the growing literature on influential alternatives to the common law.

(Via Dan Ernst at Legal History Blog).

Also, Professor Pfander and Emily K. Damrau (Northwestern University School of Law JD '15) have posted A Non-Contentious Account of Article III's Domestic Relations Exception (Notre Dame Law Review, forthcoming) on SSRN.  Here is the abstract:  

Scholars and jurists have long debated the origins and current scope of the so-called domestic relations exception to Article III. Rooted in the perception that certain family law matters lie beyond the power of the federal courts, the exception was first articulated in the nineteenth century decisional law of the Supreme Court and has perplexed observers ever since. Scholarly debate continues, despite the Court’s twentieth-century decision to place the exception firmly on statutory grounds in an effort to limit its potentially disruptive force.

This Essay offers a novel, historically grounded account of the domestic relations exception, connecting its origins to the Article III distinction between “cases” and “controversies.” Much domestic relations law fails to present a “controversy” within the meaning of Article III; the consensual nature of many status-altering acts (marriage, consensual divorce, adoption) forecloses a federal dispute-resolution role. But when federal courts hear “cases” arising under federal law, they have full power to exercise both contentious and (what Roman and civil lawyers refer to as) non-contentious jurisdiction. Our non-contentious account explains a range of puzzles, including why Article III courts can issue decrees at the core of the domestic relations exception when the matter at hand implicates federal law.

Professor Pfander absolutely owns the field of the history of standing, and people who think that modern standing law has a sound basis in the Constitution's original meaning need to pay a lot of attention to him.


I Debate Erwin Chemerinsky on the Senate and Judge Garland
Michael Ramsey

Podcast here, from the National Constitution Center.  I argue (unsurprisingly) that the Senate has no constitutional obligation to hold hearings or a formal vote on Judge Garland (without taking a view on whether that is a good idea).  Dean Chemerinsky (UCI law) strongly defends the opposing view.  Jeff Rosen is, as always on these podcasts, a gracious, fair and effective moderator.

Dean Chemerinsky is one of the greatest constitutional law teachers and debaters of our era, so ordinarily I would expect to get crushed in a match-up like this -- but it shows the weakness of his position that (in my biased view) I think I sort of hold my own against him.

He opens with, and mostly relies on, two basic arguments, neither of which I find at all persuasive.  The first is that the text of the appointments clause uses the word "shall," and that word should be read to impose a mandatory duty on the Senate as well as on the President.  Thus, he says several times, "advice and consent" simply means that the Senate must "consider" the nomination, by which he means hold a formal vote.  (I think he concedes part way through the discussion that the Senate does not have to hold hearings).

But the appointments clause manifestly does not say this.  "Shall" refers only to things the President does: nominate and appoint.  Even if you think "shall" is mandatory (see here by Seth Barrett Tillman for the argument that it isn't), "shall" does not refer to the Senate.  Nor could it, because then it would say "shall give advice and consent," and no one thinks the Senate "shall" consent.  Dean Chemerinsky wants the clause to say that the Senate "shall hold a vote on whether to consent" but there's no way to make the language say that without adding a bunch of words that aren't there.

And if it did say this, it would mean that the Senate has an obligation to vote on all presidential appointments, not just Supreme Court appointments.  There is only one appointments clause, applying to all appointments.  Of course the Senate has never thought it had this duty, and in modern times the Senate most notably refused to vote on multiple lower court nominations during the G.W. Bush presidency.  Dean Chemerinsky clearly does not want to say that the Senate practice under Bush was unconstitutional (I bet at the time he said it was fine, although I have not tried to identify such a statement).

This leads to his second argument (and a related subsidiary argument): that there is a unique problem with refusing to vote on Supreme Court nominations.  That is so, Dean Chemerinsky says, because failing to vote impairs the operation of another branch of government, which is unconstitutional.  (The subsidiary argument is that the Senate has never before refused to consider a Supreme Court nomination -- which of course works as an argument only if you think there's something constitutionally distinctive about a Supreme Court nomination).

I simply don't understand this argument (though I see why he has to make it).  First, I don't see how not voting on a nominee for the ninth seat on the Court impairs the operation of the Court as a whole in any constitutionally significant way.  I agree that the Senate could not in effect shut down the Supreme Court (which is established by the Constitution) by refusing to consent to any appointments to it.  But a temporary delay regarding one Justice is not equivalent.  The Constitution does not even require that there be nine Justices; Congress could simply abolish the ninth seat, and no one would think that unconstitutionally impaired the Court's operation.  Operating with eight  Justices may be a little inconvenient for the Court, but that's just a cost for the Senate to weigh in considering how quickly to act.

In addition, Dean Chemerinsky is not arguing (nor could he be arguing) that the Senate has a duty to consent to a nomination.  The Senate could reject Judge Garland by a formal vote, and then keep on rejecting nominees until after the election.  This would have exactly the same effect on the Supreme Court as the current approach.  Politically it may be easier for the Senate to pursue its current approach, but that has no constitutional signficance. Dean Chemerinsky is actually arguing that the Senate impairs the operation of the Court not because it is prolonging a vacancy but because it is not holding a formal vote.  But whether the Senate acts formally or informally on the nomination is irrelevant to the Court.  So I think the argument about impairing the operation of another branch has little logical force, however appealing it may be rhetorically.

My affirmative argument in basically in four parts, although it is not presented all together in the podcast because of the way the questions are structured.  Briefly:

(1)  The text imposes no duty on the Senate.  The President nominates, and if the Senate consents, the President appoints.  The Senate's role is simply as a check on the President, as a condition on the power of appointment.

(2)  By Article I, Section 5, the Senate has power to "determine rules of its proceedings."  So the Constitution leaves to the Senate the question how to respond to a presidential nomination.  The Senate could adopt a rule that it will promptly hold a vote on all presidential nominations (I think that would be a very sensible rule).  But that is for the Senate to decide, and for better or worse the Senate has adopted a different approach, which is that the majority leader and the judiciary committee chair can decide not to have formal proceedings and instead withhold the Senate's consent through an informal process.  The opposing view contends that the Senate is under a constitutional obligation to adopt a formal procedure that requires a vote, but Article I, Section 5 says the exact opposite.  (As an aside, Dean Chemerinsky repeatedly says that the Senate has an obligation to "consider" the nomination.  I don't see how even this is true -- perhaps the Senate might decide it is too busy with other matters -- but in any event, in this particular case the Senate has clearly considered the nomination and decided that whatever Judge Garland's individual merits, no consent will be given at this time for political and institutional reasons.  Dean Chemerinsky's contention is actually that the Senate must give formal and individualized consideration to the nominee.  Again, under Article I, Section 5, that's for the Senate to decide -- and for the voters to punish Senators in the next election if they think the Senate decides poorly).

(3) As Vikram Amar has argued, there are many places in the Constitution where one entity proposes a measure subject to another entity's consent: the House passes a bill, which the Senate approves or not; the President recommends a law, which Congress approves or not; the President signs a treaty, which the Senate approves or not; Congress proposes a constitutional amendment, which the states approve or not.  In none of these cases is there any constitutional obligation on the second entity to "consider" (in a formal manner) the proposal.  If the second entity declines to approve, for whatever reason and in whatever manner, the measure does not take effect.

The one exception is presentment (Article I, Section 7): when Congress passes a bill, the President ordinarily must veto the bill within 10 days -- and give reasons for doing so -- or the bill becomes law.  Use of this procedure in Article I, Section 7 shows that the framers knew how to require formal consideration if they wanted to; they just chose not to require it in the appointments clause and in the other instances mentioned.

(4) Finally, for what it's worth, the longstanding practice of the Senate, at least in modern times, is often not to act formally on a nominee.  True, this practice has been directed to lower court and executive branch nominations, but there is no evidence that the Senate has ever thought it had a duty not to extend it, if it chose, to Supreme Court nominations.  And the appointments clause applies to all nominations; if the clause imposed a duty on the Senate, that duty would apply to all nominations.  The Senate's practice shows that, under both Democrats and Republicans, it thinks the clause does not impose such a  duty.

RELATED:  Via Ed Whelan at NRO, Dean Chemerinsky has this piece in The Atlantic, which I think makes clear (perhaps unintentionally) what the Senate has considered in refusing action on the nomination.  Given how clearly he lays it out, I don't understand why he thinks the Senate isn't entitled to consider the political realities of the nomination.


Nelson Lund: The Corruption of Constitutional Conservatism
Michael Ramsey

Nelson Lund (George Mason University School of Law [now the Antonin Scalia School of Law!] has posted The Corruption of Constitutional Conservatism (Claremont Review of Books Digital, February 29, 2016) on SSRN.  Here is the abstract:    

This very short essay elaborates on Justice Alito’s comment that the Supreme Court’s decision on same-sex marriage in Obergefell v. Hodges, is evidence of “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” One contributor to this corruption has been the success of Jack Balkin’s “living originalism,” which flies the false flag of originalism in order to advance the progress of living constitutionalism. Balkin has begun to enlist prominent originalists, including Steven Calabresi, in this operation, which will make it harder for the next generation of law students to learn what genuine originalism is.

The essay -- which is indeed "very short" but also very substantive -- is a particularly sharp critique of Professor Calabresi's recent work.  I think it would be more accurately titled "The Corruption of Originalism," however.  I would resist the conflation of originalism and "constitutional conservatism," whatever that may mean.


Seth Barrett Tillman on James Bayard on Natural Born Citizens [UPDATED]
Michael Ramsey

At New Reform Club, Seth Barrett Tillman points to a source that (so far as I know) has never been cited before in the natural born citizen debate: 

James Bayard, A Brief Exposition of the Constitution of the United States 96 (Philadelphia, Hogan & Thompson 1833) (“It is not necessary that a man should be born in this country, to be ‘a natural born citizen.’ It is only requisite he should be a citizen by birth, and that is the case with all the children of citizens who have ever resided in this country, though born in a foreign country.”).  [Ed.: available here].

Bayard also wrote, consistent with other accounts of the eligibility clause:

Were foreigners eligible to the office, it would be an object of ambition, or of policy, with foreign nations to place a dependent in the situation; and scenes of corruption and bloodshed, which disgraced the annals of Poland, might have been acted over again in his country.  The necessity of citizenship by birth, precludes this, by rendering it impossible for a foreigner ever to be a candidate.

I'm not sure how much weight to give the source: it was published 40+ years after ratification, by someone who was not a member of the founding generation.  (Note: this James Bayard, born in 1799, was the son of James Bayard, the Delaware Senator who was instrumental in causing Congress to choose Thomas Jefferson over Aaron Burr for President in the 1800 election.  The younger Bayard went on  to become a U.S. Senator from Delaware like his father, and if wikipedia is to be believed, took some unfortunately positions during the Civil War).  Bayard was a relatively obscure lawyer (as far as I can determine) when he wrote his treatise, and it does not seem to have been widely cited even in its own time.  Nonetheless, it shows that the idea that children born abroad to U.S. citizens were natural born citizens themselves was a plausible position in the mid-nineteenth century.  There's no reason to think Bayard (who was born in Delaware) had any particular stake in the issue, and it is part of an otherwise pretty bland account of the Constitution.

In any event, congratulations to Professor Tillman for finding a new source to discuss.

UPDATE:  Actually, it turns out that the Bayard quote, although not discussed in the academic literature, was previously flagged by William Rawle, in a comment on ... The Originalism Blog!  My apologies to Mr. Rawle.

FURTHER UPDATE: Kevin Davidson points out that he identified the Bayard quote in 2009, in this post (scroll down, under "Other"). 


Justice Thomas Gets It Right in Evenwel v. Abbott (UPDATED)
Michael Ramsey

In Evenwel v. Abbott, decided yesterday, the Supreme Court unanimously held that states are not required to use voter population, rather than total  population, when apportioning state legislative districts.  Justice Thomas has an outstanding originalist concurrence in the judgment.  From the introduction:

I write separately because this Court has never provided a sound basis for the one-person, one-vote principle. For 50 years, the Court has struggled to define what right that principle protects. Many of our precedents suggest that it protects the right of eligible voters to cast votes that receive equal weight. Despite that frequent explanation, our precedents often conclude that the Equal Protection Clause is satisfied when all individuals within a district— voters or not—have an equal share of representation. The majority today concedes that our cases have not produced a clear answer on this point. See ante, at 16.

In my view, the majority has failed to provide a sound basis for the one-person, one-vote principle because no such basis exists. The Constitution does not prescribe any one basis for apportionment within States. It instead leaves States significant leeway in apportioning their own districts to equalize total population, to equalize eligible voters, or to promote any other principle consistent with a republican form of government. The majority should recognize the futility of choosing only one of these options. The Constitution leaves the choice to the people alone— not to this Court.

And from later in the opinion:

As the Framers understood, designing a government to fulfill the conflicting tasks of respecting the fundamental equality of persons while promoting the common good requires making incommensurable tradeoffs. For this reason, they did not attempt to restrict the States to one form of government.

Instead, the Constitution broadly required that the States maintain a “Republican Form of Government.” Art. IV, §4. But the Framers otherwise left it to States to make tradeoffs and reconcile the competing goals.

Republican governments promote the common good by placing power in the hands of the people, while curtailing the majority’s ability to invade the minority’s fundamental rights. The Framers recognized that there is no universal formula for accomplishing these goals. At the framing, many state legislatures were bicameral, often reflecting multiple theories of representation. Only “[s]ix of the original thirteen states based representation in both houses of their state legislatures on population.” Hayden, The False Promise of One Person, One Vote, 102 Mich. L. Rev. 213, 218 (2003). In most States, it was common to base representation, at least in part, on the State’s political subdivisions, even if those subdivisions varied heavily in their populations. Wood 171; Baker, 369 U. S., at 307–308 (Frankfurter, J., dissenting).

Reflecting this history, the Constitution continued to afford States significant leeway in structuring their “Republican” governments. At the framing, “republican” referred to “[p]lacing the government in the people,” and a “republick” was a “state in which the power is lodged in more than one.” S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Federalist No. 39, at 251 (Madison) (“[W]e may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour”). By requiring the States to have republican governments, the Constitution prohibited them from having monarchies and aristocracies. See id., No. 43, at 291. Some would argue that the Constitution also prohibited States from adopting direct democracies. Compare Wood 222–226 (“For most constitution-makers in 1776, republicanism was not equated with democracy”) with A. Amar, America’s Constitution: A Biography 276– 281 (2005) (arguing that the provision prohibited monarchies and aristocracies but not direct democracy); see also The Federalist No. 10, at 62 (Madison) (distinguishing a “democracy” and a “republic”); id., No. 14, at 83–84 (same).

Beyond that, however, the Constitution left matters open for the people of the States to decide. The Constitution says nothing about what type of republican government the States must follow. When the Framers wanted to deny powers to state governments, they did so explicitly. See, e.g., Art. I, §10, cl. 1 (“No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts”).

None of the Reconstruction Amendments changed the original understanding of republican government. Those Amendments brought blacks within the existing American political community. The Fourteenth Amendment pressured States to adopt universal male suffrage by reducing a noncomplying State’s representation in Congress. Amdt. 14, §2. And the Fifteenth Amendment prohibited restricting the right of suffrage based on race. Amdt. 15, §1. That is as far as those Amendments went. As Justice Harlan explained in Reynolds, neither Amendment provides a theory of how much “weight” a vote must receive, nor do they require a State to apportion both Houses of their legislature solely on a population basis. See 377 U. S., at 595–608 (dissenting opinion). And JUSTICE ALITO quite convincingly demonstrates why the majority errs by reading a theory of equal representation into the apportionment provision in §2 of the Fourteenth Amendment. See post, at 8–13 (opinion concurring in judgment).

This all sounds right to me.  Since the Court made up the one-person-one-vote standard (see here from Earl Maltz), further refinement of its requirements would be further making things up. The better originalist result is to leave implementation to the states.

Justice Alito also has an originalist concurrence in the judgment.  The majority opinion (by Justice Ginsburg) is also heavily originalist-oriented, though pointing toward somewhat different conclusions.  (So much for the death of originalism).

At SCOTUSblog, Lyle Denniston speculates that the Court had four, but not five, votes for a rule that required states to use total population (rather than just giving them the option):

The ruling’s bottom line was unanimous, but the main opinion [by Justice Ginsburg] bore many signs that its warm embrace of the theory of equality of representation had to be qualified by leaving the states with at least the appearance of the power of choice, to hold together six solid votes.

Two of the eight Justices were clearly not satisfied with the rhetoric and some of the implications of Justice Ginsburg’s opinion, and only joined in the outcome.  Those were Justices Samuel A. Alito, Jr., and Clarence Thomas, each of whom wrote separately.  Thomas also joined most of Alito’s opinion.

Had Justice Ginsburg not held five colleagues in support of what her opinion actually said in the end, two — perhaps Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy — might have abandoned the common result.  The result then might have been that the Court would have split four to four, settling nothing and releasing no opinion at all while leaving intact a three-judge federal district court’s ruling that Texas had the authority to base its state legislative seats on a division of the total population of Texas.

If true (and it sounds plausible), that seems like evidence in favor of the theory (suggested by John McGinnis) that an 8-member Court has some substantial benefits.  The Court is likely to want to avoid 4-4 splits, and thus to seek compromise and avoid sweeping opinions.  Thus the even number of Justices constrains the Court's power -- perhaps a useful check, rather than an impediment.

UPDATE:  Josh Blackman has two great posts on Evenwal, here on Justice Thomas' dissent, and here on the exchanges between Justice Ginsburg and Justice Alito on the framers' ideas.  From the latter:

In Evenwel, there is a fascinating back-and-forth between Justice Ginsburg and Justice Alito over how to understand actions taken by the framers of the Constitution in 1787, and the framers of the 14th Amendment in 1866. In short, Justice Ginsburg looks to this history for evidence that the framers in both periods favored representation based on total population, rather than on the voting population. From this, she bolsters the principle of “one person, one vote,” a doctrine that lacked any legitimate originalist pedigree when introduced in the 1960s.

Justice Alito disputes any effort to derive an equal representation theory, because the framers at both of these critical junctures of American history were not concerned with theories–they were concerned with “raw political power.”

Ilya Somin has further thoughts on Evenwel here.

FURTHER UPDATE:  At Balkinization, David Gans celebrates Justice Ginsburg's opinion: Counting All Persons is the “Theory of the Constitution” When It Comes to Representation.  In part: 

Drawing extensively on the historical material laid out in CAC’s brief, Justice Ginsburg’s opinion showed that the Constitution’s Framers—both at the Founding and after the Civil War—created an inclusive democracy founded on the idea that all persons—whether or not they have the right to vote—deserve representation.   As we continue to celebrate the 150th anniversary of America’s Second Founding this year, Justice Ginsburg’s opinion is an important reminder that the Fourteenth Amendment helps to ensure, as Lincoln promised at Gettysburg, a “government of the people, by the people, and for the people.” As Evenwel makes clear, our foundational constitutional principles call for counting all persons.     

Justice Ginsburg’s opinion shone a light on a long forgotten aspect of the Fourteenth Amendment: the Framers’ decision to reaffirm total representation as the basis for apportioning representatives in Congress.   As Ginsburg showed, the Framers debated questions of representation at great length, choosing to reaffirm the total population, because, in the words of Senator Jacob Howard, it “is the safest and most secure principle upon which the government can rest. Numbers, not voters; numbers, not property; this is the theory of the Constitution.”  As Justice Ginsburg’s opinion made clear, the Framers of the Fourteenth Amendment refused to countenance the exclusion from representation of children, women and others not eligible to vote.  The “theory of the Constitution” when it comes to representation is that all persons deserve to be counted.


Jeremy K. Kessler & David Pozen: A Life-Cycle Theory of Legal Theories
Michael Ramsey

Jeremy K. Kessler (Columbia Law School) and David Pozen (Columbia Law School) have posted Working Themselves Impure: A Life-Cycle Theory of Legal Theories (University of Chicago Law Review, forthcoming) on SSRN.  Here is the abstract:     

Prescriptive legal theories have a tendency to cannibalize themselves. As they develop into schools of thought, they become not only increasingly complicated but also increasingly compromised, by their own normative lights. Maturation breeds adulteration. The theories work themselves impure.

This Article identifies and diagnoses this evolutionary phenomenon. We develop a stylized model to explain the life cycle of certain particularly influential legal theories. We illustrate this life cycle through case studies of originalism, textualism, popular constitutionalism, and cost-benefit analysis, as well as a comparison with leading accounts of organizational and theoretical change in politics and science. And we argue that an appreciation of the life cycle requires a reorientation of legal advocacy and critique. The most significant threats posed by a new legal theory do not come from its neglect of significant first-order values -- the usual focus of criticism -- for those values are apt to be incorporated into the theory. Rather, the deeper threats lie in the second- and third-order social, political, and ideological effects that the adulterated theory’s persistence may foster, down the line.

Via Larry Solum at Legal Theory Blog, who adds extensive comments raising questions about the paper's treatment of originalism.  Among others: 

In my view, originalism is still at a fairly early stage of theoretical development.  Although ideas that are now labeled "originalist" go back to the founding era, originalist theorizing (as a enterprise that self-consciously aims at articulating a fully developed constitutional theory) only begins in response to Brest and other critics.  Sophisticated theorizing really begins in the 1990s, with Gary Lawson playing a key role, followed by work by Barnett, Whittington, and others.  Today's theoretical scene which includes those figures and many others, including Baude, McGinnis, Rappaport, Sachs, and many others, represents groundbreaking work that is engaging many of the fundamental theoretical questions for the first time.  The state of play in 2016 is not the late stage of the development of originalist theorizing.  A better characterization is that originalism is finally making the transition from a very early stage of development to what might be thought of as the early middle phase.


Seth Barrett Tillman on the Senate's Role in Appointments
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman has two further posts on the Senate and appointments:

Part 3: More On Why The Senate Has Not Defaulted On Its Purported Constitutional Duty

Part 4: Why Senate Inaction As A Response To A Presidential Nomination Is Constitutional

The latter post critiques the paper by Professors Kar and Mazzone that I discussed here.  Professor Tillman argues in part:

Senate inaction could be thought to work a delegation or transfer if the Constitution vested the nomination and appointment of statutory officers in the “current President” or the “President in office” or the “President in being.” As I understand them, Kar & Mazzone imagine these powers are tied to a particular person holding the presidency such that if his or her personal exercise of them are frustrated the Constitution has been frustrated, and in effect, power has been wrongfully transferred, delegated, etc.

But, as I read it, the Constitution’s text just vests the nomination power and the appointments power in the “President.”

Different people are President at different times and come into office in different ways. But the office of President is a continuous entity (like the houses of Congress are continuous bodies) existing across time, although held by different people. That is why—in theory—a President can nominate a person to office, the Senate can give its advice and consent, and if the President should be displaced by election or succession, then the successor President can make the appointment. As long as each step is done by a President and Senate, as long as each step is in the right sequence, then, as a matter of constitutional law, the identity of the person holding the presidency makes no difference. (Likewise, it does not matter, as a matter of constitutional law, if the Senate which acts on a nomination is: (i) the Senate in being at the time the nomination is made or (2) the next Senate following an election.) There are a few provisions in the Constitution with express time limits, but the Appointments Clause is not one of them.

Sounds right to me.  Professor Tillman and I disagree on some details (see here, and his "Part 3" above) but we have the same basic conclusion on the issue, which is that the Senate has no constitutional duty to hold hearings or vote on a nomination.