09/01/2014

Adrian Vermeule Reviews Philip Hamburger's, "Is Administrative Law Unlawful?"
Michael Ramsey

Adrian Vermeule (Harvard Law School) hs posted No: Review of Philip Hamburger, 'Is Administrative Law Unlawful?' (Texas Law Review, Forthcoming) on SSRN.  Here is the abstract:

Philip Hamburger has had a vision, a dark vision of lawless and unchecked power. He wants us to see that American administrative law is “unlawful” root-and-branch, indeed that it is tyrannous -- that we have recreated, in another guise, the world of executive “prerogative” that would have obtained if James II had prevailed, and the Glorious Revolution never occurred. The administrative state stands outside, and above, the law.

But before criticism, there must first come understanding. There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know. The book makes crippling mistakes about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.

But wait ... I thought that the modern reality is (or ought to be) that the executive (and so at least the administrative state that's controlled by the executive) is "unbound" by law (though checked by politics).  I read that right here.

(Thanks to Seth Barrett Tillman for the pointer).

08/31/2014

Jeffrey Pojanowski: Reading Statutes in the Common Law Tradition
Michael Ramsey

Jeffrey Pojanowski (Notre Dame Law School) has posted Reading Statutes in the Common Law Tradition (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract: 

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters should no longer understand themselves as bearers of the common law tradition.

Contemporary debate in statutory interpretation thus offers a choice between continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. This neat frame, however, misses important parts of the picture. This Article argues that classical common law jurisprudence in fact offers substantial support for formal theories of interpretation like textualism. In fact, the formalist’s respect for legislative compromise and deference to text or original intent may represent the natural development of a common law tradition that has increasingly linked law with popular custom and consent. By contrast, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more complete understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation.

More broadly, we need not understand the debate between formalists and dynamic interpreters as a disagreement about the common law tradition’s continued validity; rather it is an argument over which interpretation of that tradition best suits a modern, complex polity. There are good reasons — reasons grounded in common law thought — for believing that statutory formalists have a stronger argument than their dynamic critics. Given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the common law tradition and its virtues to persist in our legal system.

08/30/2014

Climate Change Negotations, Executive Agreements, and Treatymaking Power
Michael Ramsey

A number of posts have noted this report in the New York TimesObama Pursuing Climate Accord in Lieu of Treaty.

Josh Blackman: President Bypassing Treaty Clause For Climate Change Accord?

Jack Goldsmith (Lawfare): Behind the NYT Climate Accord Story

Julian Ku (Opinio Juris): Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

Greg Weiner (Liberty Law Blog): The Very Definition of Tyranny

Here's my quick assessment from an originalist perspective:

(1) The President can enter into any nonbinding agreement that he wants, on his own authority.    A nonbinding agreement (also called a "political commitment" -- see here for the definitive article by Duncan Hollis and Joshua Newcomer) is by definition not a treaty, because a treaty is binding (as a matter of international law).  As a result, a nonbinding agreement is not covered by the treatymaking clause, and instead falls within the President's executive diplomatic power.  (Note: this conclusion is different from Hollis and Newcomer's, but they do not adopt an originalist approach).  So, if as the NYT report hints, this is just a political commitment, or voluntary undertaking, the President is on firm constitutional ground. 

(2) The President has some limited independent power to enter into binding executive agreements (something Presidents have done since very near the founding).  That's because the founding generation apparently recognized some kinds of binding international agreements that nonetheless were not treaties, and thus not covered by the treatymaking clause.  (Note the different treatment of "Treat[ies]" and "Agreement[s] or Compact[s]" in Article I, Section 10).  It remains a bit unclear what these non-treaty agreements were, but the best evidence -- from Vattel and other eighteenth century international law writers -- suggests that they were minor, short term agreements.  It seems unlikely that anything contemplated by the current climate change negotiations fit this description, but it's possible.

(3) But, regardless, the President cannot unilaterally enter into any international agreement that has domestic effect in U.S. law.  Article VI lists the things that are the "supreme Law of the Land," and international agreements made by the President alone are not listed (only statutes, treaties, and the Constitution itself).  Relatedly, the President may be able to make political commitments and executive agreements through the grant of "executive Power"; but the core meaning of executive power is that it does not include its opposite, lawmaking (legislative) power.

(4) The Supreme Court has departed from point (3) to some extent, allowing executive agreements settling claims against foreign governments and foreign companies to have domestic effect in U.S. law.  Some people have read these decisions (U.S. v. Belmont, U.S. v. Pink, Dames & Moore v. Regan, and American Insurance Association v. Garamendi) to have broader application to executive agreements more generally.  But the Court in Medellin v. Texas described these prior cases as focused narrowly on settlements, and declined to extend them.  In my view, an originalist approach -- even if strongly inclined to respect precedent -- is not obliged to extend precedent to new situations.  As a result, an originalist approach would not accept executive agreements with domestic legal effect outside of settlement agreements (which are not part of the climate change negotiations).

As a result, my view is that the President has very broad power to make political commitments regarding climate change, but very narrow power to make binding commitments as a matter of international law and no power at all to alter U.S. domestic law.

I discuss the President's power in these areas, and outline an approach to originalism and precedent, in The Supremacy Clause, Original Meaning, and Modern Law (Ohio St. L.J. 2013). 

08/29/2014

Lee Strang: Originalism's Promise, and Its Limits
Michael Ramsey

Lee Strang (University of Toledo College of Law) has posted Originalism's Promise, and Its Limits (Cleveland State Law Review, Forthcoming) on SSRN. Here is the abstract: 

In this Symposium Essay, I summarize originalism’s promise and limits. Part II succinctly explains originalism’s promise. Part III briefly describes originalism’s limits. Part IV then suggests that originalism’s limits contribute to its promise.

08/28/2014

More from Ilya Somin on Elitism and Populism
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Justice Scalia on elitist and populist versions of originalism (responding to posts by Mike Rappaport and me).

Christina Mulligan et al.: Founding-Era Translations of the United States Constitution
Michael Ramsey

Christina Mulligan (Brooklyn Law School),  Michael Douma (James Madison University), Hans Lind (Yale University) and Brian Patrick Quinn (Independent) have posted Founding-Era Translations of the United States Constitution on SSRN.  Here is the abstract:

Before its ratification, the United States Constitution was translated into German and Dutch for the German- and Dutch-speaking populations of Pennsylvania and New York. Although copies of both the German- and Dutch-language translations have been preserved, they have largely escaped analysis — and public awareness — until now. This paper provides historical context for these translations and analyzes how they might aid our interpretation of the U.S. Constitution in the present day.

Supplemental to this article is an appendix containing the German and Dutch translations, as well as extensive commentary on the translations, available at http://ssrn.com/abstract=2486282.

Will Baude comments here: What do we learn from the Founding-era translations of the Constitution?

08/27/2014

Gerard Magliocca on Halbig and Originalism (and Larry Solum's Response)
Michael Ramsey

At Concurring Opinions, Gerard Magliocca: Halbig and Originalism

At issue [in Halbig, the Obamacare subsidies litigation] is a major provision in the most visible statute passed by Congress in years (if not decades).  And we cannot agree what that provision was trying to accomplish just four years after it was enacted.  Did Congress use subsidies to give states an incentive to set up health insurance exchanges, or was that not the case?  Was there a drafting error, or was this intentional?  If that is unknowable, what are we supposed to do with ambiguous constitutional provisions ratified more than two centuries ago?

Larry Solum responds (persuasively, from my perspective) at Legal Theory Blog.  A number of good points, including this one:

First, I don't know of any originalist who claims that we can know with certainty the original meaning of each and every provisions of the constitutional text.  Some provisions, e.g., the privileges or immunities clause of the 14th Amendment, are textually opaque.  This does not mean we can or should give up.  And there may be a preponderance of evidence on a disputed provision, but thoughtful originalists certainly know (better than most) that some originalist work is very difficult.

Professor Magliocca has further thoughts in response here.

Michael Dorf Responds to Eugene Volokh on the Perry Indictment
Michael Ramsey

At Dorf on Law, Michael Dorf: Separation of Powers Does Not (Necessarily) Immunize the Veto Power -- Wherein I Respond to Eugene Volokh's Reply to My Analysis of the Rick Perry Indictment.

Professor Volokh's post is noted here (the question being whether the legislature can ever criminlaize the use of a veto).

Professor Dorf poses this hypothetical, which seems like a good one:

Imagine a scenario ... [in which] U.S. intelligence learns of a foreign terrorist plot that would exploit a key vulnerability in domestic defenses; Congress acts swiftly to pass a bill appropriating funds for an emergency fix; but the President, secretly acting on behalf of the terrorists, allows the bill to sit on his desk for nine days, and then vetoes it, during which time the devastating terrorist attack occurs. Isn't this a pretty clear case of Presidential treason via the veto power?

But I say no.

08/26/2014

Justice Scalia and United States v. Sprague
Michael Ramsey

Where does Justice Scalia stand on the question (recently debated here and elsewhere) whether originalism should seek the original legal meaning of the Constitution (that is, as understood by legal experts) or simply the original meaning as understood by non-experts?

Ilya Somin argues, on the basis of a passage in District of Columbia v. Heller, that Scalia favors a "populist" meaning.  But Mike Rappaport shows that in other cases, Justice Scalia relies on legal meaning.

Here is the key passage from Heller:

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Sprague itself is an interesting if largely forgotten case, unanimously picking textualism over unexpressed purpose and living constitutionalism.  The defendant, convicted of alcohol-trafficking during Prohibition, claimed that the Eighteenth Amendment was invalid because it had been approved by state legislatures instead of by a constitutional convention.  As the Court described:

The appellees ... say that it was the intent of its framers, and the Constitution must therefore be taken impliedly to require, that proposed amendments conferring on the United States new direct powers over individuals shall be ratified in conventions, and that the Eighteenth is of this character.  They reach this conclusion from the fact that the framers thought that ratification of the Constitution must be by the people in convention assembled, and not by legislatures, as the latter were incompetent to surrender the personal liberties of the people to the new national government.  From this and other considerations hereinafter noticed, they ask us to hold that Article V means something different from what it plainly says.

Amazingly, the district court agreed (albeit on somewhat different grounds) and held the Eighteenth Amendment invalid.  As the Supreme Court further described:

[The District Court] quashed the indictment not as a result of analysis of Article V and Amendment X, but by resorting to "political science," the "political thought" of the times, and a "scientific approach to the problem of government."  These, it thought, compelled it to declare the convention method requisite for ratification of an amendment such as the Eighteenth.

But the Court had no sympathy for either view.   In a crisp opinion by Owen Roberts, it followed the plain language:

The United States asserts that Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.  A mere reading demonstrates that this is true.  It provides two methods for proposing amendments.  Congress may propose them by a vote of two-thirds of both houses, or, on the application of the legislatures of two-thirds of the states, must call a convention to propose them.  Amendments proposed in either way become a part of the Constitution

"when ratified by the legislatures of three-fourths of the several states or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . . ."

The choice, therefore, of the mode of ratification lies in the sole discretion of Congress ...

If the framers of the instrument had any thought that amendments differing in purpose should be ratified in different ways, nothing would have been simpler that so to phrase Article V as to exclude implication or speculation.  The fact that an instrument drawn with such meticulous care and by men who so well understood now to make language fit their thought does not contain any such limiting phrase affecting the exercise of discretion by the Congress in choosing one or the other alternative mode of ratification is persuasive evidence  that no qualification was intended.

So, first, Sprague wasn't about legal meaning versus populist meaning; it was about textual meaning versus implications from non-textual sources.  The full quote from Sprague adds the point that "where the intention is clear [from the text], there is no room for construction and no excuse for interpolation or addition."  Second, Sprague's approach tracks Scalia's position in Heller, which was that the text should prevail over the purpose/intent arguments pressed by Justice Stevens in dissent.  Indeed, in Heller itself Scalia relied on legal meaning and interpretive conventions -- most notably that a preamble cannot alter the unambiguous meaning of the text's operative clause.

I think the key to both opinions is that the meaning is found in the text, not in hidden and unexpressed intents.  This is what both opinion authors surely had in mind.  To read either opinion as taking a position on the legal meaning/populist meaning is to go well beyond what was at stake in the cases.

Ironically, though, the plain language Justice Roberts wrote in Sprague and Justice Scalia repeated in Heller does appear to take such a position.  It's hard to read "normal and ordinary [meaning] as distinguished from technical meaning" as anything other than contrasting popular meaning and legal meaning. 

My view is that this re-affirms the importance of not taking dicta too seriously.  People (including Justices) repeat attractive phrases without thinking closely about their implications, so long as the implications are not concrete and immediate.  As a result, I don't think the Heller/Sprague quote necessarily reflects what Justice Scalia thinks of the specific issue of legal versus popular meaning.

As an aside, US v. Sprague is interesting for a different reason.  The Court of the 1930s is criticized (rightly) for not being originalist or textualist.  But Sprague shows its Justices could unite behind a  strong bit of textualist originalism -- refusing even to engage purposive or normative arguments -- when there was no political pull in the other direction.

RELATED:  John McGinnis comments on the legal meaning/popular meaning debate: The Constitution as Law Nested in Other Law.  Jon Roland also comments: Lay vs. legal versions of originalism, including this point:

The alternatives are misframed by use of the terms "elitist" and "populist", which are distinctly modern terms, not 18th century terms. The proper distinction is between (legally) "learned" and "unlearned", and that is the way even lay persons would have distinguished the two approaches. We find no significant evidence that any laypersons in the founding era insisted on "unlearned" use of what are legal terms because they are used in a law, which makes them legal terms by definition. The average man in the street in 1787, if asked for the meaning of a term he didn't know, and told it was being used in a law, would either ask someone he trusted who was learned in the law, or look it up in a copy of Blackstone. I find not a single instance of anyone in the era insisting on his own lay meaning over that of legally learned person. That just is not the way the people of that era thought.

I would add that the term "elitist" distorts the role of the legal meaning.  The legal meaning of the text was (and is) available to those who investigate it, whether they are lawyers or laypersons, ordinary or elite.  Appealing to it does not hide or unsettle the meaning.  The key distinction (what was really at issue in Sprague) is between legal meaning of the text -- which can be looked up -- and unexpressed intent or purpose, which can only be speculated about and invoked by elite decisionmakers when convenient.

08/25/2014

Justice Scalia, Ordinary Meanings, and Legal Meanings
Mike Rappaport

Mike Ramsey, Ilya Somin, and now Tim Sandefur have been having a debate over whether the original meaning of the Constitution should be interpreted in accordance with the meaning as understood by the ordinary public or by people with legal knowledge.  I may have more to say about this next week, but for now I want to note a significant issue.

Under the original methods originalism position that John McGinnis and I defend in Originalism and the Good Constitution, the Constitution should be interpreted in accordance with the interpretive rules that would have been deemed applicable to it at the time of its enactment.  Since the Constitution is a legal document, we believe these interpretive rules are those that would have been applied to a legal document.  These legal interpretive rules would sometimes require that the ordinary meaning apply rather than a more technical meaning, but they would often require legally informed meanings and understandings to be employed.  

It might seem that Justice Scalia supports the ordinary public side of this issue.  In DC v. Heller, Justice Scalia wrote that: 

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Thus, Scalia seems to side with the view that legal meanings are not followed.  But Scalia seems on weak ground here.  First, Sprague is a 20th century case, which is no evidence of the original meaning, and Gibbons does not really support him.  

Second, Scalia himself has regularly relied on the legal meanings of terms in the Constitution.  For example, in Crawford v. Washington, one of Scalia’s premier originalist opinions concerning the Confrontation Clause, he quotes with approval that 

the “right … to be confronted with the witnesses against him,” Amdt. 6, is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. . . . As the English authorities above reveal, the common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine.  The Sixth Amendment therefore incorporates those limitations. 

The common law is the legal meaning.  One cannot assume that the general public understood that meaning and therefore Scalia here seems to be contradicting his methodological statement in Heller. 

In Giles v. California, another originalist Confrontation Clause opinion written by Scalia, Scalia does it again.  The issue is whether a witness who is rendered unavailable to testify by the defendant can have his testimony excluded based on the Confrontation Clause.  Scalia writes that 

the manner in which the [common law] rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying—as in the typical murder case involving accusatorial statements by the victim—the testimony was excluded.

Once again, the content of the Confrontation Clause turns on technical questions under the common law – knowledge that the ordinary public would not have know.  I am confident that I could produce numerous other examples of Justice Scalia interpreting texts in accordance with technical legal meanings. 

Perhaps Justice Scalia is just being inconsistent.  But there is another possibility.  Perhaps when he says that the Constitution’s “words and phrases were used in their normal and ordinary as distinguished from technical meaning,” he does not mean to exclude legal meanings.  Perhaps he had “hypertechnical constructions” in mind. 

But Justice Scalia’s statement in Heller is curious and, given this other evidence, is only used problematically as evidence against legal meanings.  

(Cross posted at the Liberty Law Blog)

Mark Graber: Constructing Constitutional Politics
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Constructing Constitutional Politics: Thaddeus Stevens, John Bingham, and the Forgotten Fourteenth Amendment on SSRN. Here is the abstract: 

This paper maintains that Thaddeus Stevens and other Republicans who were primarily responsible for drafting the Fourteenth Amendment sought to construct a constitutional politics that guaranteed to the extent feasible that the persons who remained loyal to the Union during the Civil War, white and black, would control the meaning of the post-Civil War Constitution. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment would prevent the rebirth of the Slave Power. Sections 2 and 3 the Fourteenth Amendment were the texts most crucial to this constitutional mission. Stevens and other members of the Thirty-Ninth Congress thought these provisions would most likely compel the South to enfranchise persons of color and, if not, sharply reduce the influence of former slave states and former slave owners on national policy and constitutional decision making. Republicans cheerfully endorsed the more substantive provisions in Section 1. Nevertheless, with the notable exception of John Bingham, the Republican leadership in the House and Senate understood that the rights, restrictions and powers enumerated in Section 1 of the Fourteenth Amendment, as well as those enumerated in the Thirteenth Amendment, would be interpreted and implemented in good faith only if Sections 2 and 3 successfully reconstructed American constitutional politics so as to ensure the continued hegemony of the political party of the people who remained loyal during the Civil War.

08/24/2014

Julio Esteban Altamirano: The Rise and Fall of Our Constitutional Legal Systems
Michael Ramsey

Julio Esteban Altamirano (Independent) has posted The Rise and Fall of Our Constitutional Legal Systems: Part I: And a Potential Solution to the Debate between Professor Goldsworthy and Kirby J of the High Court of Australia? on SSRN. Here is the abstract: 

The following paper will address the debate between Professor Jeffrey Goldsworthy and Kirby J of the High Court of Australia as it relates to the debate on which constitutional interpretive methodology is legitimate. Professor Goldsworthy arguing against radical non-originalism whilst Kirby J in defence of his progressivist approach to constitutional interpretation.

The paper defines with some discussion of the various approaches to constitutional interpretation including: originalism, moderate originalism, non-originalism, etc…

Professor Goldsworthy argues that radical non-originalism or progressivism as a methodology of constitutional interpretation results in the destruction of the rule of law, democracy and in the Australian context federalism by arguing that this form of constitutional interpretation effects illegitimate change, that is, by allowing the Constitution to be interpreted according to the changing needs of society, the definition of progressivism or radical non-originalism in constitutional interpretation, would enable the judiciary to avoid s 128 of the Australian Constitution (the referendum procedure), "…in a haphazard fashion…" resulting in the destruction of these vital constitutional principles – the rule of law, democracy and in the Australian context federalism.

The paper also seeks to define the rule of law from a Diceyan perspective and also what is meant by democracy to clarify on the debate and determine whether codification of judicial review would enhance such principles, also as enshrined in section 128 of the Australian Constitution.

The paper will propose the codification of judicial review or constitutional interpretation and codifies the interpretive methodology of McHugh J and submit that by codifying Kirby’s J radical non-originalism and submitting it to a constitutional referendum as approved would in fact enhance the rule of law, democracy and in the Australian context federalism, thus, providing a solution to the debate between Professor Goldsworthy and Kirby J of the High Court of Australia.

The hypotheses, can progressivism or radical non-originalism actually enhance the rule of law, democracy and federalism rather than resulting in their destruction contrary to what Professor Goldsworthy claims?

And would the reforms so mentioned be constitutional from a separation of powers perspective? In the answering of the latter question, the separation of the powers doctrine is defined and introduced with discussion on whether codification of judicial review would breach the separation of powers doctrine.

08/23/2014

Eugene Volokh on the Perry Indictment
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: Why the Gov. Rick Perry prosecution unconstitutionally intrudes on the gubernatorial veto power (concluding "so long as the constitution grants the governor the power to veto laws, I don’t think the legislature can criminalize such vetoes, and thus free itself from the constraints that the state Constitution imposes on it.").

I know nothing about Texas law, but I agree this is the right analysis under federal law.  In my Constitutional Law course I routinely use the veto as an example of a power the President may excercise in the face of express congressional disapproval.  And if Congress cannot directly prohibit a veto, likewise it should not be able to attach penalties to the use of a veto.  As Professor Volokh says, the remedy for misuse of the veto (for personal gain, for example) is impeachment.

In this post, linked by Professor Volokh, Mike Dorf at Dorf on Law argues the opposite.  In particular:

The indictment charges that Perry used what would otherwise be a perfectly legal tool for an illegal purpose, and thus committed unlawful acts. Once one thinks this through, one realizes that the defense Perry has thus far publicly mounted is inadequate. It would be as though someone who was charged with committing murder by deliberately running over his victim with his car protested: "But I have a license to operate a motor vehicle."

Well, no, it isn't like that at all, because the license to operate a motor vehicle isn't granted by the Constitution.   The President's (or Governor's) constitutional authority can only be limited by other constitutional provisions. 

(Professor Dorf get some pushback along these lines in the comments, and has some interesting responses).

08/22/2014

John McGinnis on Justice Sutherland's Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Justice Sutherland's Uncertain Trumpet.  From the conclusion:

Sadly, the hero of my youth has become for my middle age another figure with feet of clay. His dissent in Blaisdell shows he had it in him to be a fine originalist. Why in these other important cases has he so failed this jurisprudential test? One explanation is the usual one. Sutherland was results oriented. He was an internationalist and Curtiss-Wright’s location of foreign affairs authority in the President facilitated internationalism at the time.  He had served as a Senator and Burroughs’ ratification of election regulation advanced confirmed power in the national government.

Another explanation may be that the rise of living constitutionalism in the Progressive Era affected conservative as well as liberal justices. Justices may be even more the prisoners of the jurisprudential theories of their time than of their political ideology. Perhaps that explanation should give us hope today, as originalism continues its comeback in the academy and in the courts.

Professor McGinnis generously cites this post in which I sharply criticize Sutherland's foreign affairs opinions.

Seth Barrett Tillman: Originalism & the Scope of the Constitution's Disqualification Clause
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Originalism & the Scope of the Constitution's Disqualification Clause (Quinnipiac Law Review, Forthcoming, Vol 33, Issue 1, circa Dec. 2014) on SSRN.  Here is the abstract:

This paper discusses the scope of the Constitution’s Disqualification Clause (Article I, Section 3, Clause 7) and the original public meaning of its “office . . . under the United States” language. In a recent paper in this journal, Benjamin Cassady argued that this clause bars disqualified former presidents, vice presidents, and officers of the United States from subsequent election or reelection to the presidency and vice presidency. Here, I take the contrary position: disqualified former presidents, vice presidents, and officers of the United States are not barred from any elected positions, state or federal. Rather, such disqualified former presidents, vice presidents, and officers of the United States are only barred from holding statutory or appointed federal offices. Finally, I address some issues relating to best methodological practices and the use of structural and other intuitionist modalities of interpretation when constitutional text is reasonably clear.

I primarily rely on evidence contemporaneous with the ratification of the U.S. Constitution, including: the drafting traditions of the Committee of Detail and the Committee of Style, statutory drafting traditions going back to the First Congress, official Executive Branch communications from Secretary Alexander Hamilton to the Senate, and President Washington’s gifts from foreign government officials. These are all Founding-era precedents involving the Constitution’s “Office . . . under the United States” language, i.e., the operative language in the Disqualification Clause.

I expect this paper will appear in conjunction with papers from Professor Brian C. Kalt, Professor Peter C. Hoffer, and Buckner F. Melton, Jr.

I am ever hopeful that my paper (and those of the prominent commentators mentioned above) will draw some response from both Mr Cassady and those commentators upon who his paper relied.

 Here is the paper by Benjamin Cassady mentioned in the abstract.

08/21/2014

Timothy Sandefur on Elitist and Populist Versions of Originalism
Michael Ramsey

At Freespace, Timothy Sandefur comments (critically) on Ilya Somin's post on elitism and populism: An example of "elitist versus populist originalism" (with an interesting account of the opinions in Wayne County v. Hathcock, the Michigan eminent domain case).  On the broader question, he observes:

But surely the populace is on notice that terms in the Constitution are very important, are pored over by lawyers and judges, and are interpreted in light of other precedents. They are therefore ultimately responsible for choosing words that avoid results they don't like, such as incorporating the Berman interpretation of "public use" into their state Constitution. If they fail to take such precautions, then the law presumes that they've done what they've done intentionally. If they later decide that was a mistake, then either (a) the precedent on "public use" was wrongly decided, and should be overruled for that reason, or (b) the people can use the tools at their disposal to alter the constitutional wording. But I see no way that this problem breaks down along epistemological grounds, or that it can be understood along the axis of elites versus populism. This problem is better understood as an ordinary problem of constitutional interpretation--does "public use" include economic development or not?--than as some deeper problem of interpretation, or at least, a problem of interpretation that turns on the question of elites versus the populace.

And trying to analyze it in terms of the latter, and to take a position on the side of such a vaguely defined concept as "populism," seems to invite the eradication of all law, essentially. What I mean by that is, law consists almost entirely of a very refined and specialized use of language. That refinement and specialization is within the grasp of the ordinary person, but most ordinary people don't bother trying it: they (rationally) leave that task to legal experts. If the experts do something wrong, then the people can use their retained power to fix the problem. But to say that there is some fundamental problem with the lawyer's technical use of language does not help. What, after all, are we to replace it with? Daily polls of what people think the terms mean? Then who will take the polls? And who will interpret these polls? And then aren't the interpreters doing just what judges already do: figuring out what people think the words mean?

Ilya Somin responds here, with a further response from Tim Sandefur here.

Without endorsing everything Tim Sandefur says, I think he and I are aligned on the basic proposition that law is (in part, anyway) a specialized use of language, and so it really doesn't make sense to interpret legal language in a way that does not recognize it as a specialized use of language.

John McGinnis and Michael Rappaport make a similar point in Originalism and the Good Constitution (p. 134):

The reader of a legal document knows that documents are often subject to legal methods that may affect their meaning.  While this is true of legal documents, it is not less true of other specialized documents.  For example, the reader of a postoperative report would recognize that the interpretive conventions  of the medical profession govern its meaning.  Similarly, the reader of the US Constitution would recognize that its meaning depends on interpretive rules that were generally deemed applicable to written constitutions of this type.

Brian Tamanaha: The Mounting Evidence Against the ‘Formalist Age’
Michael Ramsey

Brian Tamanaha (Washington University in Saint Louis - School of Law) has posted The Mounting Evidence Against the ‘Formalist Age’ (Texas Law Review, Vol. 92, No. 1667, 2014) on SSRN. Here is the abstract: 

In Beyond the Formalist-Realist Divide (2010), I challenge the widely held view that American legal culture at the turn of the twentieth century was dominated by belief in legal formalism, which the legal realists came on the scene to shatter in the 1920s and 1930s. Our image of the “Formalist Age,” I argue, is not historically accurate — many prominent jurists in the period expressed consummately realistic views of law and judging. This essay is a concise presentation of the historical evidence that supports my position, citing a major work completed since the publication of my book that adds support to my argument. While presenting this evidence, I respond to assertions by Professors Al Brophy and Frederick Schauer that the many realistic statements I convey in the book are merely examples of early realism, which are insufficient to refute the conventional image of the formalist age.

What I show is that, not only is the evidence of realism explicit and plentiful — as realistic as anything legal realists would say three decades later — but also that realistic views of law and judging were uttered by the very jurists who have been identified as leading legal formalists. The story of the formalist age does not hold up.

08/20/2014

Ilya Somin on Elitist and Populist Versions of Originalism
Michael Ramsey

Ilya Somin follows up on our prior exchange with this long and interesting post: Elitist and Populist Versions of Originalism.  From the introduction:

My recent exchange with Michael Ramsey about originalism and laws banning interracial marriage turned on the point that the original meaning of the Fourteenth Amendment more clearly bans such laws if it is interpreted in accordance with the understanding held by legal elites at the time of enactment than those held by the general public. This highlights a more general divergence between different versions of originalism: some originalists adopt elitist versions of the theory, which privilege the understanding of the Constitution held by a small group of framers or legal experts, while others are more populist. This divide is often ignored, even by constitutional theorists. But it is an important issue nonetheless. There are serious arguments for both elitist and populist versions of originalism. And the difference between the two approaches has important implications for constitutional interpretation.

I agree with much of what he says.  Here are a few further thoughts:

1. I think the most common version of modern public meaning originalism embraces something like the view Professor Somin rightly associates with Gary Lawson and Guy Seidman: a search for the meaning of the constitutional text to a hypothetical “reasonable person,” who is “conversant with legal traditions and conventions of the time.”  This is not really "elitist," because it reaches (one hopes) the conclusion that most people of the time would reach if they investigated the words' legal meanings.  It's true that the shared understandings of legal elites is good (though not necessarily conclusive) evidence of such a meaning; but evidence also comes from dictionary definitions, the structure of the text, the previous use of the words and phrases in legal and political discourse, and other background assumptions about legal and constitutional structure and tradition.

2.  A competing view might be that the "reasonable observer" should not be "conversant with legal traditions and conventions of the time" -- what Professor Somin would call the "populist" version.  One would look only to the plain meaning of the text, without considering its legal context.  Perhaps a useful example is the ex post facto clause, which to someone not knowledgeable of the legal context might have encompassed any retrospective law but upon investigation of the legal context appears to have meant only retrospective criminal laws.  So perhaps a better way to think about the divide is not between elitist and populist meanings, but between legal and non-legal meanings.

3.  Professor Somin says that "many originalists simply rely on the understanding of the general public at the time of ratification, without resorting to hypothetical constructs, or limiting the inquiry to those who might be reasonable."  I'm not sure this is true, and if true I'm unclear how these originalists hope to find such an understanding -- we simply don't have access to what the "general public at the time of ratification" thought about particular constitutional phrases.  (To continue the example, how would one determine what the general public in 1788-89 thought "ex post facto laws" meant?)  For the most part, we have to use a "reasonable observer" as a proxy for the public consensus.  To the extent we have information about public understandings, that's useful evidence, but in general I think we at best have evidence about particular people's understandings, not the public as a whole.

4.  Professor Somin suggests that the more populist versions of originalism may align better with originalism's theoretical justifications:

But there is also a strong case for the populist approach. Unlike a medical or engineering text, the Constitution derives its legitimacy (at least on many theories) from the approval of We the People. Indeed, many originalists defend originalism on the basis that the original meaning is the one that was enacted by democratic political processes, and had the consent of the public. The meaning the public approved was that understood by the general population, not the views of a small elite of experts.

Perhaps.  But the Constitution was not approved by referendum; it was approved by elected representatives -- the ratifying conventions, for the original constitution, and the state legislatures, for the amendments.  True, the members of these bodies were not all members of the legal elite -- but some of them were, and their debates were focused on the legal meaning of the text in a way that the public at large was not.  The conventions and state legislatures may have been influenced by the results their constituents wanted, but they were probably not so concerned about how their constituents understood particular phrases.  

Again consider the ex post facto clause: the ratifiers may have cared whether their constituents thought all retrospective laws should be banned, but in considering the text, their concern would have been the likely legal meaning of the phrase, not what their constituents thought the phrase meant.   So I would think that versions of originalism based on the understandings of the ratifiers (that is, of the conventions and the legislatures) would lean more to the legal rather than the populist meaning.

08/19/2014

Adam Lamparello: NLRB v. Canning and the Case for Originalism
Michael Ramsey

Adam Lamparello (Indiana Tech - Law School) has posted With All Deliberate Speed: NLRB v. Canning and the Case for Originalism on SSRN. Here is the abstract:  

Record numbers of Americans are renouncing their citizenship. California’s citizens have amassed enough signatures to place on the 2016 ballot a proposal to divide California into six separate states. At least 34 states recently called for a second constitutional convention. Several states have ignored or enacted laws defying Supreme Court precedent. One has threatened to secede. Former Supreme Court Justice John Paul Stevens has responded to this crisis by calling for the addition of six constitutional amendments, several of which expand federal authority. That, in a nutshell, is the problem. This Article argues that, to remedy the imbalance in power between the federal and state government, democracy should be more localized, not centralized.

If states were divided into local, or mini-democracies, citizens might have a stronger voice in governance. If mini-democracies were comprised of members of difference races, ethnicities, income brackets, and sexual orientations instead of homogenous and entrenched majorities, laws might reflect the diverse perspectives of its citizens. If wealthy citizens and corporations could not buy access to lawmakers, inequality might lessen. Most importantly, if the Supreme Court rejected living constitutionalism and allowed local lawmakers to craft their own unenumerated rights jurisprudence, citizens might be allowed to meaningfully self-govern. Is any of this possible? Yes. The Constitution — and originalism — makes it possible. Right now, however, the concept of local democracies and participatory governance is little more than an aspiration. Democracy has become a privilege for the wealthy, a mere aspiration for the middle class, and a pipe dream for the poor. As democracy becomes more illusory and inequality widens, the ‘American dream’ is becoming just that: a dream.

08/18/2014

Jesse Cross: National 'Harmony': An Inter-Branch Constitutional Principle and its Application to Diversity Jurisdiction
Michael Ramsey

Jesse Cross (Independent) has posted National 'Harmony': An Inter-Branch Constitutional Principle and its Application to Diversity Jurisdiction (Nebraska Law Review, Vol. 93, p. 501, 2014, Forthcoming) on SSRN. Here is the abstract: 

Most constitutional interpretation continues, in the words of John Hart Ely, to be "clause-bound" in nature: it presumes that each constitutional clause can be studied in isolation from each other clause. As a result of this shortsighted methodology, constitutional scholars have overlooked a single organizing metaphor that was used at the Constitutional Convention to shape a host of constitutional clauses scattered across Articles I and III: the metaphor of national "harmony." Within the rhetoric of Enlightenment science, the term "harmony" was used in the Founding era to identify those forces that extended between the independent parts of a larger system – most notably, between the planets of the solar system. As this article shows, the Founders self-consciously borrowed from this rhetorical tradition, referencing national "harmony" to identify those matters that, much like the vectors of gravitational force that extend between independent planets, were observed to extend across multiple states. In this regard, the organizing metaphor of national "harmony" was used to articulate an overarching principle that animated many Article I and Article III powers: that federal power should apply to interstate matters.

This harmony-based view has substantive implications for many areas of constitutional law, including for Article III diversity jurisdiction. For example, it supports the constitutionality of congressional statutes that make broad use of diversity jurisdiction – statutes that some have argued are unconstitutional due to their use of federal courts to promote efficiency in interstate cases, even when these cases do not pose threats of local bias. The harmony-based view also suggests the need for reform of personal jurisdiction rules for federal courts – rules that have consistently prevented federal courts from handling much multistate litigation, and that thereby have prevented diversity jurisdiction from performing the full range of its intended functions. And this view casts new light upon twentieth-century developments in state court personal jurisdiction – developments that were the Court’s attempt in the postwar era to provide adequate judicial oversight of the newly emergent interstate economy (and therefore to compensate for Congress’s refusal to allow the federal courts to serve their originally intended role in our constitutional scheme).

For myself, I perfer "clause-bound" interpretation (what some might call "what the text actually says") to a "metaphor" (even a metaphor the founding generation used).

That's not to say that a founding-era metaphor, or a generalized goal of the founding era, isn't relevant or useful.  It is part of the context in which the text was written, and thus can be important evidence of what the text means. 

But a generalized goal, standing alone, only tells us so much.  There may be multiple ways of implementing a generalized goal.  There may be competing considerations that cause the framers to pursue the generalized goal only to any extent, not to its fullest.  The text is what tells us how, and to what extent, the framers implemented their generalized goal.  That's why I don't regaard "clause-bound" as an insult but rather as an appropriate direction: the clause (the text) is what binds, although its meaning may be determined by consulting multiple sources.

 

08/17/2014

Ilya Somin on David Upham on Originalism and Interracial Marriage (Updated)
Michael Ramsey

At Jotwell, Ilya Somin: Originalism and Interracial Marriage (reviewing David Upham, Interracial Marriage and the Original Understanding of the Privileges or Immunities Clause).

Professor Somin praises Professor Upham's contribution but raises this broader methodological issue:

Since the late 1980s ... most originalists have shifted [from "original intent"] to the “original public meaning” camp, which argues that the Constitution should be interpreted as it would be understood by readers of the text at the time it was ratified. Original meaning originalists disagree about exactly whose understanding of the text is relevant. Some emphasize the understanding held by legally sophisticated readers, such as judges, lawyers, and legal scholars. Others focus on the understanding of a hypothetical “reasonable” reader of English at the time, who may or may not be legally sophisticated, depending on the views of the theorist in question.

Upham’s evidence is very powerful from the standpoint of theories of original meaning that emphasize the understanding of actual or hypothetical readers expert in law. Most of his evidence consists of the views of just such experts, particularly those associated with the political movement that supported the Amendment. But many original meaning theorists emphasize not the understanding of experts, but that of the general public—either the actual public or a hypothetical non-expert “reasonable” reader at the time. After all, ratification is ultimately supposed to be a democratic process that expresses the will of the people, not just a small elite.

It is far from clear that ordinary citizens shared the understanding advocated by Republican elites in the 1860s and 1870s. The text of the Amendment does not unequivocally state that laws banning interracial marriage are now unconstitutional. The average reader of English would not readily understand that a provision barring states from “abridge[ing] the privileges or immunities of citizens of the United States” would necessarily require them to permit interracial marriage. And there is little doubt that most whites, in both the North and the South, strongly disapproved of interracial marriage, as they continued to do until late in the twentieth century. Had a majority of the general public believed that the Fourteenth Amendment would require state recognition of interracial marriages between blacks and whites, opposition to the Amendment would likely have been much stronger, and it might not have been ratified. Upham does cite a few newspaper articles suggesting that popular support for interracial marriage was rising in the 1860s and early 1870s. But more evidence would be needed to show that such support had advanced to the point where anything like a majority of voters believed that the Fourteenth Amendment had banned antimiscegenation laws.

I agree this is an important methodological issue, but I think (particularly in this case) the right approach is clear.  Words get meaning from their context.  The context of words in a constitution, statute, treaty, etc., is that they are part of a legal document.  In a legal document, one would expect to encounter a legal vocabulary.  Thus the right way to understand words in a legal document -- whether you are a member of the legal community or an ordinary non-legal person -- is to understand those words' legal meaning. 

This approach is not something unique to law: if I -- a lawyer, not a doctor or an engineer -- am reading a medical document or an engineering document, I am going to try to find out the medical or engineering context of the words in the document, not try to work out what the words (shorn of their context) mean to me at first sight. Or at least, that's what I should do.

This approach is particularly sensible when the words in question do not have an obvious non-legal meaning.  To take Professor Upham's subject, "privileges or immunities of citizens" does not have a common meaning apart from its legal context.  To the extent it has any specific meaning, that meaning must come from the way the phrase was understood in the legal vocabulary.

As a result, I think that regardless of whether the objective is the original legal meaning or the meaning to a well-informed ordinary reader of the time, the answer is the same.  An ordinary well-informed reader would seek out the legal meaning, because that it is the best way to understand words in a legal text.

As Professor Somin says, though, that may not be what ordinary people of the time actually understood, because many ordinary people may not have taken time to inform themselves of the best meaning of the legal text.  I think that possibility does not call for a different interpretive approach, however, for at least two reasons.  First, it seems a hopeless task to assess what ordinary people actually understood, without using as a proxy the text's legal meaning.  Second, especially for constitutional text, the legal meaning likely is a fair proxy for what many ordinary people understood.  Because a constitutional text has to be ratified (indirectly, in this case) by ordinary people, if its legal meaning is something ordinary people might oppose, its opponents have a very strong incentive to educate ordinary people about its legal meaning.

As a result, I'm less concerned about the possible divergence between legal meaning and ordinary understanding, especially in the case of the Professor Upham's subject.  I agree, though, that it would be troubling if there was evidence of a wide gap between the original common understanding of the text and the text's original legal meaning.

UPDATE:  Professor Somin responds here.

08/16/2014

Gregory Ablavsky: Beyond the Indian Commerce Clause
Michael Ramsey

Gregory Ablavsky (University of Pennsylvania Law School) has posted Beyond the Indian Commerce Clause (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract: 

Since the 1970s, the Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for the exercise of federal power over Indian affairs. Modern opinions have interpreted the Clause’s terse authorization for Congress to “regulate Commerce...with the Indian Tribes” to grant the federal government exclusive power against the states to regulate relations with Indians, and plenary power to govern tribes, including their internal affairs. Scholars have shared the Court’s embrace of the Clause but disagreed with its conclusions, using the Clause’s history to question the scope of federal authority both against states and over tribes. In two recent concurrences, Justice Clarence Thomas echoed these claims by arguing that the Clause’s original understanding does not support federal exclusive or plenary power over Indian affairs, with radical implications for current doctrine.

This Article uses previously unexamined historical sources to question the fundamental basis for this debate and highlight the inadequacy of the Indian Commerce Clause as the principal constitutional foundation for the federal Indian affairs power. Indeterminate when written, the Clause was a minor component of constitutional thought until the nineteenth century, when proponents of Indian removal concocted a narrow textualist focus on the Clause to argue for narrow federal authority over Indian affairs.

Moving beyond the Indian Commerce Clause, this Article posits new constitutional sources for federal authority by drawing on the constitutional thought of the Constitution’s drafters and early interpreters, particularly the Washington Administration. To claim federal power over Indian affairs against the states, the Administration embraced a holistic reading of the Constitution akin to present-day field preemption. With respect to authority over Indians, the Administration, through constitutional interpretations of the law of nations, asserted ultimate U.S. sovereignty, displacing Indian tribes as fully independent sovereigns. Beyond these limitations, however, the Administration acknowledged Native autonomy. Yet, despite their supposedly modest scope, the legal principles advanced in this period formed the basis for the later elaboration of plenary power over Indian tribes.

The history revealed in this Article suggests a partial revisiting of current doctrine. On the one hand, it provides a more solid foundation for principles that Justice Thomas and others have derided as “schizophrenic” or incoherent. On the other hand, it suggests more limited federal authority over Indians and greater respect for tribal sovereignty. Ultimately, the Article demonstrates the value of more historically grounded reconstructions of original understandings of the Constitution.

08/15/2014

Richard Samuelson on Executive Power
Michael Ramsey

At Liberty Law Blog, Richard Samuelson: Entropy in the Executive.  From the conclusion:

It is, however, an open question whether a government as big as as ours can at this point stay a limited constitutional government. Must contemporary “big government,” to use our shorthand term for it, be arbitrary government? Madison worried that it would be, as he noted in a passage I quoted in this space recently.  It bears re-quoting in the current context:

In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mould regulations of a general nature so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, that the degree of Executive prerogative materially consists.

Madison may not have been entirely correct. It might be possible, in some ways, to expand the job of government in a manner consistent with the separation of powers. But that line probably does not go all that far. There is one particular concern to keep in mind. Human beings are creatures of habit, as are our politicians. An executive that grows accustomed to having a great deal of discretion in writing and implementing the laws that Congress passes will, almost certainly, come to think his job is to exercise discretion in general, even in cases where the law is quite clear or where there is no law giving him any authority to act.

Given that the kind of person who is likely to become President is not likely to be the kind of person who likes to think of himself as the employee of anyone, much less of the common people of the United States, the growth of administrative discretion is a grave danger to the separation of power and hence to the cause of republican self-government.

08/14/2014

Suja Thomas on the Seventh Amendment and the States
Michael Ramsey

Suja Thomas (Illinois) has some interesting thoughts at Volokh Conspiracy on a recent decision in Puerto Rico.  Excerpts:

Should juries decide civil cases in state, commonwealth, and territory courts? According to a federal judge in the Gonzalez-Oyarzun v. Carribean City Builders case, the answer is yes.

...

Following McDonald, this summer, a judge in the federal district court of Puerto Rico [in the Gonzalez-Oyarsun case] found that the Seventh Amendment applies to the states. In the case, the plaintiff sued for age discrimination and retaliation in the federal court. The defendant moved to dismiss on several grounds including that a termination agreement required the plaintiff to bring the case in a Puerto Rico court. The plaintiff argued that this forum selection clause was invalid, because Puerto Rico does not permit jury trials in civil cases (whereas jury trials are available in the federal courts), which violated his Seventh Amendment right. While the court held that the clause was valid, it cited my article Nonincorporation and adopted its reasoning that the civil jury right was a fundamental right. Thus, according to the judge, the Seventh Amendment applied to the states.

That seems likely correct as a matter of original meaning.  As Professor Thomas outlines:

I have written that significant evidence from England at the time of the adoption of the Constitution, at the time of the founding of the Constitution, and at the ratification of the Fourteenth Amendment showed a civil jury was a fundamental right, and as a result, the Seventh Amendment should apply against the states. For example, Blackstone wrote that “[i]n magna carta [trial by jury] is more than once insisted on as the principal of our liberties; but especially . . . that no freeman shall be hurt in either his person or property” without trial by jury. And the founders quoted Blackstone on the general importance of the jury to protect property, liberty, and life. Moreover, evidence that the civil jury right was fundamental includes that many states had the civil jury right at the time of the founding and at the time of the ratification of the Fourteenth Amendment.

08/13/2014

Are the Strikes on ISIS Unconstitutional?
Michael Ramsey

I see this as a very difficult question.  I start from the premise that the declare war clause gives Congress exclusive power to decide whether the United States will initiate war (although that power is delegable to the President).  Applying this rule to the situation in Iraq is, to say the least, tricky.  At least 5 questions must be answered:

(1) Can the U.S. be at war with ISIS?  That is, is ISIS enough of a state-like entity that engaging it militarily is a "war" in the constitutional sense?  I would think that helping an ally suppress rebel groups within its borders is often not a war, because the rebel groups are too unstable and disorganized to look anything like an entity that could be one side of a war.  On the other hand, I assume that an entity need not be a "state" in the formal modern international law definition in order to be part of a war.  (Attacking Hamas in support of Israel, for example, would seem to initiate a war with Hamas, even if Hamas is technically not a state).

(2) If the U.S. can be at war with ISIS, is the U.S. at war with ISIS?  Perhaps infrequent and defensive airstrikes, designed to protect U.S. personnel in Erbil and/or to assist evacuation of civilians but not to fundamentally threaten ISIS's control of its territory or its military power does not count as warfare.  (In contrast, the 2011 Libya campaign, designed at minimum to prevent the Libyan government from using military power to destroy opposing forces, and apparently more broadly to assist in driving it from power, should count).  To be sure, it's not clear that the U.S. operation against ISIS is so limited.

(3) If the U.S. is at war with ISIS, is this a new war?  Perhaps the ISIS conflict is just the latest iteration of the conflict with Sunni extremists that the U.S. fought in 2007-08.  If so, it's an extension of the prior, congressional authorized conflict in Iraq, and therefore does not need any further authorization.  (See also # 5(a) below, although these are not exactly the same questions).

(4)  If this is a new war, did the U.S. start it?  Here the key question is not who started the shooting, but who first showed a determination to settle differences between ISIS and the U.S. by force?  Perhaps ISIS initiated a state of war with the U.S. by making bellicose statements such as (apparently) saying it would plant its flag on the White House.  In my view (and Alexander Hamilton's), when another country begins a war with the United States, the President does not need Congress' approval to respond.

(5) If the U.S. started a war with ISIS, did the President acting without Congress' approval? (a) Perhaps authority comes from the authorization to use force in Iraq, which is not limited to any particular adversary or time period (and which apparently allowed the U.S. to fight a previous round of battles against Sunni rebels in western Iraq) -- Jack GOldsmith makes the argument here.  (b) Perhaps authority comes from the authorization to use force against al Qaeda and its supporters, since ISIS (maybe) started as an al Qaeda off-shoot.  (Also (c), perhaps authority comes from the war powers resolution, although I discount that argument).

Each of these questions must be answered "yes" to make the President's action unconstitutional.  I am not confident about the answers to any of them.

Michael Coenen on Jefferson's Proposed Solution to the "Dead Hand" Problem
Michael Ramsey

At Concurring Opinions, Michael Coenen: On Jefferson’s Proposed Solution to the “Dead Hand” Problem (and the Futility Thereof).  An excerpt: 

Thomas Jefferson once opined to his friend James Madison that “the earth belongs in usufruct to the living” and “the dead have neither powers nor rights over it.”  These observations underlie the so-called “dead hand” problem of constitutional theory.  The problem is this:  Why should we the living generation of the present be governed by the constitutional dictates of dead people from the past? What gives those people the authority to rule us from the grave?

To Jefferson, these questions were unanswerable: The dead, on his view, had no right to rule from the grave, which in turn meant that “no society can make a perpetual constitution, or even a perpetual law.” But that conclusion raised a further question of its own: namely, how should we the people of the present design a constitutional system that defuses the threat of dead-hand rule down the road.  Jefferson’s answer was simple: Require that “every constitution . . . , and every law, expire after 19 years,” at which point the new generation of the living would acquire the prerogative to choose a new constitutional system for itself.

08/12/2014

What Constitutional Obligations Does Congress Have?
Michael Ramsey

Josh Blackman comments on this post:

I agree entirely with you about the scope of Congress's duties--they have no affirmative obligation to pass any laws, or confirm any nominees, or really do just about anything for the other branches. The best I could come up with, is that they have to pay salaries to the President and Federal Judges, and perhaps have to receive the state of the union address.
 
I address just this point in my article [Gridlock and Executive Power]:
 
The President has a constitutional duty to “take care that the laws [are] faithfully executed,” but the Congress has no similar duty to “faithfully enact” laws. Rather “Congress shall have the power” to make a number of laws, but need not do so. In fact, the Constitution is entirely silent about any obligation of Congress to exercise its Article I powers. Congress’s affirmative duties towards the other branches are limited to providing compensation for the President and federal judges—these commands appear in Article II and Article III, respectively, not Article I. Likewise, while the President has the duty to appoint officials—he “shall nominate” executive branch officials—the Senate’s role is limited to “Advise and Consent,” which need not be given at all. When Congress refuses to pass laws the executive desires, or confirm nominees the President selects, we have in the words of Justice Breyer, “a political, not a constitutional problem.”

Agreed.  I took another look at Congress' legislative duties & could only come up with one clear additional one: arranging for the census.  (Article I, Section 2: "The actual Enumeration shall be made within three Years after the first Meeting of teh Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they [Congress] shall by Law direct.").  Also per the guarantee clause of Article IV, "[t]he United States shall guarantee" each state a republican form of government, which probably imposes a duty on Congress.  (Article I, Section 4 also requires Congress to "assemble at least once in every Year," though this does not require any legislation).  All in all, though, it is notable how few obligations the Constitution imposes on Congress -- almost every clause relating to Congress grants a discretionary power, not a duty.

More from Professor Blackman here (commenting on this further post by Eric Posner). 

Originalism and Current Practices
Mike Rappaport

With a view towards President Obama’s military actions against ISIS, Mike Ramsey has a good post on whether the significant limits imposed by the Constitution’s original meaning on the President’s power to initiate hostilities operate to place inconvenient constraints on the US’s ability to take desirable actions. Mike concludes that the original meaning’s constraints, while considerable, would still allow the US significant ability to take action.

Mike writes that the President: “has independent power to respond to attacks . . . on the United States”; to “deply troops to defensive positions in support of an ally” (and to respond if those troops are attacked); and to “transfer weapons and supplies to allied forces” (which in my opinion should have been done a long time ago).

He also writes: “Congress can delegate to the President the power to use force if the President thinks necessary” and therefore “Congress could have (and probably should have) delegated to the President temporary authority to deal militarily with ISIS prior to leaving on vacation.” And finally the Constitution allows the President to call the Congress into session, which with modern transportation, would allow quick action.

I think there is an important point here about how to apply the original meaning to the present world.  In a world governed by the original meaning – where both the President and the Congress understand the original meaning and follow it – practices and institutions can be developed that allow for a workable government that conforms to the original meaning.  By contrast, if one simply imagines applying the original meaning to our existing world, which does not have those understandings or practices, the original meaning may seem burdensome.

For example, if the Congress really believed that the President could not and would not act against ISIS without authorization, it could have and would have delegated to him authority to act before leaving on vacation.  Similarly, if the Congress refused to provide such authority to the President, then he could still provide arms to the Kurds, which would not require congressional authorization.

The basic point is that people often dismiss the original meaning as impractical or undesirable because it does not coordinate well with current practices.  But that is because current practices have been developed in response to nonoriginalist rules of law.  If the original meaning were accepted – or required by the courts or some other entity – then the practices would adapt.

(Cross posted at the Liberty Law Blog)

Philip Hamburger: Deference to Administrative Interpretation
Michael Ramsey

Philip Hamburger (Columbia University - Law School) has posted Deference to Administrative Interpretation: The Unasked Questions on SSRN. Here is the abstract: 

The key questions about judicial deference to administrative interpretation have not yet been asked, let alone answered. Under cases such as Mead, Chevron, and Arlington, judges must “respect” or otherwise “defer” to agency interpretations of ambiguous authorizing statutes. The Supreme Court and myriad scholars justify this deference by asking whether an agency has statutory authorization to interpret. There remain, however, two constitutional questions about the role of the judges.     

First, under the Constitution, the judges have an office or duty to exercise their own independent judgment about what the law is, and it therefore must be asked how the judges can defer to the interpretation or judgment of executive or other agencies about what the law is. In respecting or otherwise deferring to agency judgments, the judges are abandoning their duty--indeed, their very office--of independent judgment. 

Second, under the Fifth Amendment, parties have a right to the due process of law, and it therefore must be asked whether judicial deference is really systematic bias for one party and against others. The judges respect or otherwise defer to agencies’ interpretations of statutes, and they thereby typically are favoring the interpretation or legal position of one of the parties in their cases. They thus are engaging in systematic bias in favor of the government and against other parties in violation of the due process of law.

Even where agencies have authorization to interpret for their purposes, this statutory authority cannot put to rest the constitutional questions about the judges. The statutory authority for agencies cannot excuse the judges from their constitutional duty to exercise their own independent judgment about the law; nor can it brush aside the constitutional right of parties not to be subjected to systematic bias.

08/11/2014

The Washington Post (and Josh Blackman and others) on Executive Power
Michael Ramsey

The Washington Post Editorial Board: Frustration over stalled immigration action doesn’t mean Obama can act unilaterally.  From the conclusion:

The right response to the collapse of the U.S. immigration system is for Congress to fix the law. The House had a vehicle to do just that by taking up the legislation passed by the Senate last year. But it does not follow that Congress can be ignored based on its failure to act. The right response to lawmakers who won’t solve the immigration mess is to replace them with ones who will.

Via Josh Blackman, who outlines his views here.  Also via Josh Blackman, at Slate, Reihan Salam: Gridlock is Good --  When House Republicans stand in the way of President Obama, it means they’re taking their constitutional duties seriously.

And a further related post from Josh Blackman: 1992 OLC Memo: President, In Face of Senate Filibuster, Should Not Use Unilateral Authority to Change Unambiguous Law.

In the New Republic, Eric Posner has a somewhat contrary view: Obama Is Legally Allowed to Enforce—or Not Enforce—the Law -- with which, surprisingly, I agree a good bit (more on that later).  But there's this:

If Congress cannot pass any laws because of gridlock, then it has violated its obligations under the Constitution, and accordingly the president has the right to use his enforcement powers to implement policies that serve the public interest. 

Wrong.  Congress has no "obligations under the Constitution" to pass laws (subject perhaps to a few specific exceptions that aren't relevant to immigration or anything else that Professor Posner is talking about).  Congress has the power to pass laws.  But it also has the power to decide not to pass laws.  That Congress fails to pass laws that President Obama or Eric Posner thinks are needful only proves that Congress has a different view, not that something subtlely unconstitutional, justifying extra-constitutional solutions, is afoot. 

08/10/2014

Gary Lawson: The Unsavory Origins of Administrative Law
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted The Return of the King: The Unsavory Origins of Administrative Law (Texas Law Review, Forthcoming) on SSRN.  Here is the abstract:

Philip Hamburger's Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, is really just the most recent That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, contemporary toward consolidated It represents precisely the forms of both in general and as was designed to prevent. Accordingly, virtually every aspect of modern administrative law directly challenges the Constitution.

This extraordinary book will be immensely valuable to anyone interested in public law. My comments here concern two relatively minor points that call for more clarification. First, Professor Hamburger does not clearly identify what in violation ” There is evidence that Professor Hamburger means something more than the former, but it is not clear what more is intended. In order to gauge the real status of administrative law, we must have a more direct conception of law than Professor Hamburger provides.

Second, much of Professor Hamburger’s historical and constitutional analysis focuses on the subdelegation of legislative authority. While his discussion contains numerous profound insights, including some that require correction in my own prior scholarship on the subject, it does not discuss how to distinguish interpretation by judicial and executive actors from lawmaking by those actors. Presumably, the prohibition on subdelegation of legislative authority prohibits only the latter. Figuring out where interpretation ends and lawmaking begins is one of the most difficult questions in all of jurisprudence, and I am not convinced that Professor Hamburger can successfully perform an end-run around it.

But these are modest nitpicks about a path-breaking work that should keep people of all different persuasions engaged and occupied for quite some time.

(Via Larry Solum at Legal Theory Blog, who says "Highly Recommended")).

08/09/2014

More from Ilya Somin on ISIS and War Powers
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Does the need for swift action in a crisis justify presidential initiation of war without congressional authorization? (commenting on this post).

ISIS and War Powers (Updated)
Michael Ramsey

Recent events in Iraq seem to pose a challenge to a limited view of presidential war powers.  Suppose, the argument runs, a fast moving threat to U.S. national security arises quickly, at a time when Congress is not meeting.  Containing the threat depends on a fast response -- but if the President must get Congress' approval to act, action will come too late.  This is the ISIS situation in a nutshell.  Nor is this an artefact of modern times; while threats may arise more quickly now, Congress meets more often and can be more easily recalled.  Thus the challenge goes to the core of original meaning of the declare war power: could the framers have intended to deny the President the ability to act in an emergency (such as the one posed by ISIS) by vesting war-initiating powers exclusively in Congress?

In no particular order, here are my responses:

(1) The President has independent power to respond to attacks (and, I would say, imminently threatened attacks) on the United States.  (See my article The President's Power to Respond to Attacks).  This power is not foreclosed by the Congress' declare-war power.  This power may also include power to protect U.S. personnel abroad.  Indeed, as Ilya Somin describes in his excellent post Assessing Possible Legal Justifications for US Airstrikes against ISIS, this is an arguable ground for the President's acts (so far) in Iraq: to defend U.S. personnel in and around Erbil.  In any event, even a narrower view of the response power would allow the President to defend against core threats to and attacks on the United States, which are obviously the ones of greatest concern.

(2)  The President has independent power to deploy troops to defensive positions in support of n ally (as, for example, President Bush did in 1990 in Saudi Arabia in response the Saddam Hussein's attack on Kuwait).  If those forces are then attacked, the President can defend them.  Thus, one response -- distateful for political reasons, of course -- to the ISIS threat would have been to move troops to Erbil.

(3)  The President has authority to transfer weapons and supplies to allied forces.  So if the concern is an attack on an ally, the President can respond in this manner.  (Arguably in the current situation the President should have responded in this way earlier to the ISIS threat against the Kurdish region).

(4) Congress can delegate to the President the power to use force if the President thinks necessary.  This claim is somewhat more controversial, but it accords with longstanding practice dating at least to the quasi-war with France in 1797.  (I have some further thoughts in this article: Presidential Declarations of War).  While I am doubtful that Congress could constitutionally make an open-ended non-specific delegation, in the present case I think Congress could have (and probably should have) delegated to the President temporary authority to deal militarily with ISIS prior to leaving on vacation. 

(5) Perhaps most importantly, per Article II, Section 3, the President may "on extraordinary Occasions, convene both Houses ..."  This is the constitutional text's most apparent way of dealing with emergencies requiring the attention of Congress.  Its inclusion suggests that the framers understood the risk of investing Congress with powers that might be needed in an emergency while knowing that Congress would often not be immediately available.  Because the text does not give the President general power to act in an emergency, the clause further suggests that the framers, although knowing the risks, still thought re-convening Congress was preferable to unilateral action.

With modern transportation, re-convening Congress is quite easy; in the framers' time it was obviously harder, but threats also developed more slowly then.  Of course, a re-convened Congress might not approve of the President's proposed action -- but that would suggest that the need to act was not as great as the President contended.

In sum, these considerations suggest to me that the problem of responding to rapidly developing military threats is not an intractable one, even under a narrow view of presidential war powers.  To be sure, some of these strategies (though not all of them) may sound odd or anachronistic to modern ears.  But that is because in modern times we have assumed greater presidential power to act in emergencies, and thus discounted how the Constitution actually dealt with them.

UPDATE:  At Lawfare, Jack Goldsmith: The Case for Seeking Congressional Authorization for Iraq Strikes Just Grew Stronger.  Plus related posts here and here.

08/08/2014

The Truth About the Supreme Court's Recess-Appointments Ruling: Concluding Thoughts in Response to Professor Wildenthal
Steven Semeraro

[Steven Semeraro is a Professor of Law at Thomas Jefferson School of Law.  This is Part 4 of an exchange between Professor Semeraro and Professor Bryan Wildenthal.  Part 1 is here, part 2 is here, and part 3 is here.  Thanks to both Steve and Bryan for thier contributions.  --MDR]

Bryan Wildenthal makes an unassailable case for a narrow recess appointment power if one believes that the goal of constitutional analysis should be to determine the meaning of the Constitution's words in the sense of what an educated reader in 1791 would have thought that the words meant as applied to then-contemporary issues.

I disagree with his method because I don't think that it can be justified. Original meaning analysis most plausibly rests on the notion that the Constitution was ratified through a democratic process, and we should therefore interpret it to mean what those who voted to ratify it thought that it meant when they cast their ballots. Presumably, ratifying voters thought that the words meant what dictionaries of the day defined them to mean. At that level of generality, original meaning interpretation sounds reasonable. But if one focuses more specifically on what ratifying voters may have thought, original meaning analysis strikes me as either unjustifiable or indistinguishable from living constitutionalism.

I reach this conclusion by considering three possibilities about the thought process of ratifying voters. First, they may not have focused on the particular meaning of the clause at issue. And if that's the case, the democratic approval justification loses its punch for me. Why should we care about the meaning of words to people who didn't take that meaning into account in casting their votes?

Second, if ratifying voters did think carefully about a particular provision they would have understood both (1) the principles underlying it, and (2) that those principles would be employed to resolve future questions triggering the clause, even when they themselves would not have been able to anticipate the question. Assuming to the contrary (the third possibility) that ratifying voters would have (a) have considered a clause, but (b) failed to understand the principles motivating the words or assumed that those principles would never be extended beyond what they could then foresee, would again remove the justification for using the voters' understanding as a guiding principle for the future. Why defer to the understanding of someone so narrow minded and short sighted?

Living constitutionalism, as I understand it, is thus the application of what thoughtful ratifying voters would have anticipated. It has little to do with the notion that the Constitution is old and outdated. It rests on the notion that even one day after ratification, issues would arise on which the Constitution's words may apply, but that neither the drafters nor the ratifying voters would have anticipated. For a living constitutionalist, those issues should be resolved by determining how the principles embodied in the Constitution could best be applied to new questions.

In thinking about the "advice and consent" and the "recess appointment" clauses, the underlying principles seem clear to me. With respect to the former, by choosing the phrase that they did, the drafters must have been looking to a principle that differed from an approval or veto power on behalf of the Senate. The chosen phrase points to a principle that the Senate should play a role in ensuring that federal appointees would be qualified individuals who were experts in their fields, not merely political cronies of the President. But it is the President who has the appointment power, not the Senate. Qualified appointees should be confirmed.

As for the recess appointment clause, the underlying principle seems even clearer to me. Despite the value of Senate advice and consent, situations could arise where the need for an immediate appointment would outweigh the value of Senate input for the remainder of that term of Congress. The notion that the drafters (or thoughtful ratifying voters) would have assumed that only one objective fact -- the Senators couldn't get to Washington fast enough because then-existing means of transportation were very slow -- justified a recess appointment is conceivable. But it is far from the best interpretation of the principle underlying the clause, because so many other conceivable reasons would also justify a recess appointment.

These principles lead me to conclude that if
(1) the Senate does not reject an appointee, but simply fails to confirm despite ample opportunity to do so; and
(2) the Senate as a practical matter goes into recess; then
(3) the President should be able to make a recess appointment of the slow-rolled appointee lasting the remainder of that Congress.

With respect to at least one of the appointees at issue, this standard seemed to be met. Bryan's appeal to the need for the Senate and the President to compromise seems to me out of place. I don't understand how the principle of forced compromise could be embodied in the "advice and consent" clause. The drafters would have used the phrase "approval of the Senate" or "subject to the veto of the Senate" if they had that sort of system in mind. I'm willing to consent to many things that I'd never approve if the power to approve were in my hands.

Finally, I don't think that this assessment of the principles underlying the recess appointment clause requires the courts to make any difficult line-drawing decisions. Whether to make a recess appointment should be the President's decision to make, knowing the impact that it would have on his legislative agenda and future elections. I think that President Obama did it in this case knowing that his legislative agenda would not suffer, because the existing Senate had no interest in compromising on anything, and calculating that making these recess appointments would benefit his party in future elections.

As a short post-script, I acknowledge that my conclusions here are debatable. But I think that the debate should focus on the best application of the principles underlying the words of the Constitution rather than on what a ratifying voter would have understood the words to mean either separately from the principle underlying them or without appreciation that principles may apply beyond one's provincial vision.

The Truth About the Supreme Court's Recess-Appointments Ruling: A Reply to Professor Semeraro
Bryan Wildenthal

[Bryan Wildenthal is a Professor of Law at Thomas Jefferson School of Law.  This is part 3 of an exchange between Professor Wildenthal and Professor Steven Semeraro.  Part 1 is here and part 2 is here.]

I won't pursue​ all of​ Steve Semeraro's excellent points at length ​here, but he does ​make a ​strong​case for a non-originalist approach ​in this context (though I am not necessarily persuaded by his arguments)​. 

I would say​, Steve, that​ you raise some very interesting and fundamental issues about what "originalism" means and how much role the Framers (or ratifying "founders' generation"​ as​I would prefer to focus ​up​on) "intended" or what "purpose" they had in enacting ​or ​adopting a particular Clause.

I would start ​by​ asking whether there is any reasonable ambiguity in the text, requiring us to resort to broader "intents" or "purposes." Not surprisingly, I would tend to say "no" here. Sometimes the text itself, with some fairly simple "dictionary" aids, really does answer legal and even constitutional questions, in my view. I guess that does align m​e​ a bit with ​Justice ​Scalia on some issues​ (​yikes!)​.​

As far as whether a recess appointment can fill "any" vacancy, or only one that arises during "the" (or a) ​"recess​"​ (however that is understood), I think even Justice Breyer signals and effectively concedes his deep uneasiness that he​ knows he​ is on very thin ice here. ​He starts off by admitting that the reading he eventually insists on (for weak "historical practice" reasons) is simply not the most "natural"! I think the text states the narrower meaning about as clearly as constitutional text can.

And once one accepts that, it largely moots the issue of which "recesses" count (only formal inter-session, or any old break during a session​?​). Because the shorter a break is, the less likely it is for any vacancy to arise during the recess in the first place, and the intra-session breaks are generally rather short (​A​dmittedly, these days, the inter-session breaks are also shorter and shorter, as Congress moves close to year-round session, a circumstance the founding generation​simply​ did not foresee)

Thus, genuine controversies about appointments during "ultra-short" recesses (3 days in Obama's NLRB appointments in Jan​uary​ 2012, or an "instantaneous fraction of a second" in the notorious case of President Theodore Roosevelt's attempted recess appointments in 1904),​ will be rare as hen's teeth.

I would admit the textual issue is somewhat more debatable as to what kind of "recess" counts (though not as debatable as Justice Breyer or my colleague Steve claim).

​In sum, ​I would generally say the only permissibly relevant "purpose" of the drafters and ratifiers in 1787-89​, was simply to adopt a Clause that clearly, by its text, allows ONLY for a president to make temporary, short-lived appointments to fill vacancies that happen *during* "the" formal recess between sessions of the Senate.

In my view, Steve's argument (and Breyer's) sidesteps the clear meaning of that text (whether in 1789 or today) to frame an alternative rule based on a broader rationale, that I think there is no evidence (at least no clear evidence) the founding generation embraced.

And although one may argue we today should embrace this broader rationale, I actually do not, and clearly many Senators of both parties do not and have not over more than 200 years (and several of our earlier Presidents formerly did not ​insist upon​ the broad view that all Presidents in recent decades seem to).

And if we're just arguing over whose rationale today should prevail, um, should not the text enacted in 1789 and still in force today, be the "tie-breaker" that decides who wins? If "originalism" means simply that clear text, whenever enacted, remains in force until and unless amended or repealed, I guess I​ do​ plead guilty to being an "originalist"​ at least in that sense. (I​ do​generally identify as an "originalist​" of some sort.​)​

Steve's alternative rationale (a perfectly reasonable and functional one to meet a practical concern) is that the Recess Appointments Clause:

"should enable the President make the appointments necessary to enable the government to do its work within a reasonable period of time whether the Senate acts irresponsibly by (1) calling an unreasonably long recess to delay the appointment; or (2) refusing to provide advice and consent and holding phony sessions to pretend that no recess has occurred."

This may be an arguably valid concern, to enable the President to make appointments that fill some objective need that he or others see. But I don't see how the Clause was written or intended to fill such a broad role. I think it really was, as fairly clearly written, just to enable the President to fill certain vacancies that crop up during a recess because the founding generation understood, in the horse-and-buggy era, that the Senate could not reassemble quickly.

If "modern circumstances" have changed so that the Clause or its meaning should also change, there is a remedy: amend the Constitution. And actually, you don't even need to do that to fill Steve's entirely reasonable and functional concern. Instead of recess appointments, as both Breyer and Scalia discuss, Presidents can make "acting" appointments of executive officials already in the particular departments, which is in fact what happens. Congress can provide by ordinary legislation for that and various other alternatives.

Of course, the President and Congress would have to negotiate and compromise on the terms of such legislation (what else is new?) rather than the President pulling out of his back pocket a convenient constitutional trump card (as Obama tried to do in this case).

Also, I would hesitate to label the Senate as being "irresponsible" or simply "not doing its job" on advice and consent, when it blocks a given appointment, or even any appointments to a certain office or judge. Yes, I myself often find that infuriating and "irresponsible" at some political level (and I'm sure presidents gnash their teeth over it). But presidents also may be "irresponsible" by insisting on the appointees they want and by not simply compromising with the Senate about certain appointments or certain agencies or their roles.

The Constitution clearly and explicitly provides both the Senate and President with certain raw powers, and simply because one side or the other acts childishly in "abusing" such powers (i.e., using them in a way that infuriates the other side), I do not think we have established that the Constitution has been violated.

The power to give "consent" includes the power to deny it --- for any reason, and I do not see how the Constitution validates certain reasons and rules off limits other reasons that a President or a Supreme Court may assess as not worthy or "serious" or "responsible" enough.