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.


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.



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.


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.


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.


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.


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.


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.


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. 


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")).


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.


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.

Philip Hamburger Guest-Blogging at Liberty Law Blog
Michael Ramsey

He is everywhere...

Here are the initial posts:

Extralegal Power

From Prerogative to Administrative Power

From the latter:

Of course, what early Americans called “prerogative” power, we call “administrative” power. But this difference in terms cannot obscure the reality that this sort of power–consisting of binding extralegal edicts–was what provoked the development of constitutional law and what was emphatically barred by it.

It therefore is odd to hear from contemporary defenders of administrative power that it is a new sort of power, which could not have been anticipated by the U.S. Constitution. Although the late nineteenth- and early twentieth-century proponents of administrative power did much damage to constitutional governance, many of them at least understood what they sought. They recognized that they were reviving prerogative power–the sort of power that provoked the development of constitutional law–and rather than shy away from this reality, they often candidly admitted it.


Ilya Somin on Airstrikes in Iraq
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: President Obama authorizes limited airstrikes in Iraq against ISIS.  On the constitutional question:

Be that as it may, anything more than extremely limited air strikes would be an act of war that requires congressional authorization under the Constitution. ...

Although ISIS is a nonstate entity, that does not mean that large-scale military action against it cannot qualify as a war. The US campaign against al Qaeda is surely a war, as is Israel’s conflict with Hamas, even though neither is a formally recognized government. Indeed, there are obvious parallels between ISIS and Hamas, as both are terrorist organizations that control a substantial territory despite lack of international recognition as states. At this point, the territory controlled by ISIS is likely significantly larger than that controlled by Hamas in Gaza.

I agree.  While I have doubts about when a non-state entity (like al Qaeda) becomes state-like enough to have a war with it, ISIS seems to have crossed that line since my prior post on the matter.  Indeed, I'm not sure it's now a non-state entity at all -- it claims to be a state, and is a non-state only because we (and others) don't recognize it.  But that can't be the test for declare-war purposes.

(There is, of course, also the argument that the President already has congressional approval thorugh the Iraq AUMF).

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

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

Not that the New York Times needs my help, and I'm certainly no expert in this area, but I think that the majority opinion deserves more credit. And because no one ever seems to debate anything anymore, I thought this would be a good one on which to present a contrasting opinion.

The precise meaning and content of a constitutional provision at the time it was adopted should not control its future application. Those of us who believe in the concept of a "Living Constitution" believe that its terms evolve to address the challenges of modern life. The genius of the drafters should not be ignored. But neither should it be cramped by the precise context that they considered. Justice Breyer's opinion correctly recognizes this -- "the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language."  And that essential purpose, the majority concluded is to - "grant[] the President the power to make appointments during a recess but not offering the President the author­ity routinely to avoid the need for Senate confirmation." This strikes me as right, and the dissent's position that one must interpret the constitutional language as constrained by the specific purpose that the framers had in mind is, I believe, wrong.

I would criticize the majority opinion for failing to follow through on its initially correct interpretation of the clause by excluding "political disagreement" as a potential justification for a recess appointment. Overwhelmingly, political disagreement has been the reason for recess appointments.  And it seems to me that the "advice & consent" and "recess appointment" clauses were broadly intended to permit exactly that to occur. First, the clauses require consultation between the president and the Senate. If the framers believed that a purely political process were appropriate for appointment confirmation, they would have required Senate "approval." By choosing the phrase that they did, the framers conveyed a requirement of good faith cooperation that generally throughout the nation's history has been interpreted to permit the president broad authority to appoint the people necessary to implement the political program on which he was elected so long as those people were well qualified. Second, the recess appointment clause addressed situations in which an appointment was important to running the country, but the "advice & consent" of the Senate could not be obtained within a feasible time frame. To be sure, the framers had one particular example in mind. But there is no reason to think that they wouldn't worry about the principle of appointment timeliness more generally, including situations in which the Senate refused to play constitutional ball by treating the president as if he had taken power in a coup d'etat rather than a lawful election. Yes, elections might resolve disputes over confirmation by replacing those Senators responsible for holding up appointments. But it would take a long time. The whole point of the recess appointment clause is to allow appointments without unreasonable delay.

The events that led to this case are well known. The NLRB lost its quorum through member resignation, and a minority of the Senate blocked the appointment necessary to restore the quorum. It was quite clear that the minority's intent was not to provide "advise and consent" on the qualifications of a particular appointee as part of the cooperative process required by the Constitution. The intent was instead to block the President from appointing anyone who would implement the President's views on the proper interpretation of the labor laws. Because of the Senate minority's refusal to fulfill its "advice and consent" role in good faith, the "advice and consent" of the Senate could not be obtained within a feasible time frame, justifying a recess appointment. I have oversimplified the facts and perhaps the recess appointment of all three board members at issue in the case could not have been justified. But I believe that the basic point is correct. Although the recess appointment clause should not empower a president to routinely avoid Senate input on appointments, it 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.

The Truth about the Supreme Court's Recess-Appointments Ruling
Bryan Wildenthal

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

It's not often that my view of a constitutional issue diverges so utterly from that of my favorite national newspaper, the New York Times.

The Times's editorial regarding NLRB v. Noel Canning, going out on quite a limb, condemns even the narrow ruling agreed upon unanimously by all 9 Justices, that a president cannot simply unilaterally override the Senate's own position that it has remained in session (albeit "pro forma") in order to block a presidential "recess appointment" (bypassing Senate confirmation).

The Times complains that the Court's narrow unanimous ruling allows the Senate to get away with political obstruction. Perhaps so, but the Constitution does not provide remedies for every type of political abuse or obstruction by either the Senate or the President. We have a political process and elections to deal with that. Nor was it ever the purpose of the Recess Appointments Clause to give the President a trump card in confirmation disputes with the Senate. Rather, the Clase had the far narrower purpose, now obsolete, of enabling necessary appointments when the Senate was out of session during the horse-and-buggy era and could not be conveniently reconvened for weeks or months at a time.

Get a grip, Times! The administration's position in that regard was arrogant and untenable and it's hardly surprising it drew unanimous rejection from the Court, including both of President Obama's own appointees and all four Justices generally typecast as "liberal."

Of course, what happened to the days when "liberal" Justices, and liberals generally, were properly cautious about ALL presidential-power overreach, even of presidents of their own party? Do we forget so easily the abuses of presidents we did not like so much, like Nixon in Watergate and Johnson in Vietnam? This case presents the bizarre spectacle of the four most liberal Justices upholding major aspects of a power that was notoriously abused by President George W. Bush, far more often than by President Obama; while Justice Scalia's concurring opinion for four Justices, favoring a more comprehensive crackdown on recess-appointment abuse, cites approvingly to a brief filed against ​President Bush in 2004​ by​ the late great liberal Democratic​ Senator Ted Kennedy!

The more fundamental issues decided in this case go to broader issues of the President's recess-appointment powers. They may have somewhat limited practical significance, since the Court upheld the Senate's ability to block such appointments by staying in "pro forma session," but they are still inherently important and for what they say about the Justices's competing views and uses (or misuses) of history.

The New York Times refers to what it calls "the bizarre prescription of the United States Court of Appeals for the District of Columbia Circuit that such [recess] appointments can only be made between sessions of Congress, and then only when vacancies occur during that limited recess. An expansive interpretation of recesses has prevailed since the beginning of the republic, Justice Breyer wrote, showing a regard for history not shared by Justice Antonin Scalia and three of his conservative colleagues, who wrote a concurring opinion that supported the circuit court’s ruling."

The Times's view is utterly and completely wrong and off-base​, as is Justice Breyer's depiction of the relevant history. I urge you to read the opinions for yourself​:

As Justice Scalia accurately summarized, in arguably the finest opinion in his tenure on the Court (ironically, another leading candidate is his lone dissent in ​ Morrison v. Olson, the​ 1988 decision​ in which he urged a broad view of presidential appointment powers in another context; he also got that one right, in my view; he would have struck down the then-special prosecutor law, which Democrats only later learned to hate when it was used against President Clinton by Ken Starr):

First, as to whether recess appointments may only be made during "the Recess" between formal "Sessions" of the Senate:

"Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional by the first Attorney General to address them, were not openly defended by the Executive until 1921, were not made in significant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties. It is astonishing for the majority to assert that this history lends 'strong support,' ante, at 11, to its interpretation of the Recess Appointments Clause [which, as Justice Scalia had already persuasively explained, is untenable under the text and history of the Clause].

"And the majority’s contention that recent executive practice in this area merits deference because the Senate has not done more to oppose it is utterly divorced from our precedent. 'The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic,' Freytag, 501 U. S., at 880, and the Senate could not give away those protections even if it wanted to. See Chadha, 462 U. S., at 957–958 . . ."

(​Quoting ​Scalia, J., concurring in the judgment, slip pp. 25-26.)

As Justice Scalia also asks (slip p. 16): "If the Constitution’s text empowers the President to make appointments during any break in the Senate’s proceedings, by what right does the majority subject the President’s exercise of that power to vague, court-crafted limitations with no textual basis?" (Justice Breyer's majority opinion rips out of context an unrelated provision on congressional adjournments to say that a president can never make a recess appointment during a break shorter than 3 days, and invents out of whole cloth a 10-day minimum for a recess under which such an appointment is "presumptively" invalid; thus creating a nightmare of future litigation over whether the "presumption" may be overcome in some emergency situation.)

Second, as to whether such appointments may only be made to fill a vacancy which, as the Constitution very clearly states, "may happen during the Recess of the Senate" (if the broader meaning adopted by Breyer's majority had been intended, the Clause would obviously have referred simply to "any Vacancies during the recess of the Senate"):

"Washington’s and Adams’ Attorneys General read the Constitution to restrict recess appointments to vacancies arising during the recess, and there is no evidence that any of the first four Presidents consciously departed from that reading. The contrary reading was first defended by an executive official in 1823, was vehemently rejected by the Senate in 1863, was vigorously resisted by legislation in place from 1863 until 1940, and is arguably inconsistent with legislation in place from 1940 to the present. The Solicitor General has identified only about 100 appointments that have ever been made under the broader reading, and while it seems likely that a good deal more have been made in the last few decades, there is good reason to doubt that many were made before 1940 (since the appointees could not have been compensated [under the legislation referred to, in force from 1863 to 1940]). I can conceive of no sane constitutional theory under which this evidence of 'historical practice'—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch."

(​Quoting ​Scalia, J., concurring in the judgment, slip p. 47.)

​Like Justice Scalia, I also "can conceive of no sane constitutional theory under which this evidence of 'historical practice'—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch."

Scalia and his 3 colleagues are right in this case and Breyer and his 4 colleagues are wrong, plain and simple.

It is and was hypocritical that few if any Republican Senators joined Sen. Kennedy in 2004 in opposing President Bush's recess appointments, while all 45 joined in a brief opposing President Obama's in this case.

But why do Democrats, and progressive editorial voices like the New York Times, need to replicate such mindless politically-driven hypocrisy and opportunism (by some Republicans) on an enduring constitutional issue?

Justice Scalia can fairly defend himself from any charge of political hypocrisy on this issue: no case raising the recess-appointments issue came before the Court on the merits during the Reagan or Bush Administrations, and Justice Scalia has ruled against other expansive executive power claims in the past, e.g., rejecting Bush's detention without due process of a U.S. citizen in Hamdi v. Rumsfeld​ (2004​)​, a case that found him to the left of Justice Breyer, and dissenting against broad presidential use of "executive agreements" with foreign governments, without Senate ratification, in a 2003 case.

Does it occur to my progressive Democratic friends that President Obama, with his generally cautious and thoughtful approach to presidential power (at least compared to ​President ​G​eorge ​W. Bush, though Obama has abused his powers on some issues, like drones and targeted assassination of U.S. citizens abroad), will not be president forever?

Do they want to see future Republican presidents eagerly exploiting every executive-power loophole created by the Court or Obama?

As Justice Scalia very wisely summarized:

"[T]he majority’s insistence that the Senate gainsay an executive practice 'as a body' in order to prevent the Executive from acquiring power by adverse possession, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress. In any controversy between the political branches over a separation of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch. See generally Bradley and Morrison, Historical Gloss and the Separation of Powers, ​126 Harv. L. Rev. 411, 439–447 (2012).

"All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party. (The majority would not be able to point to a lack of 'formal action' by the Senate 'as a body' challenging intra-session recess appointments, ante, at 15–16, had the appointing President’s party in the Senate not blocked such action on multiple occasions.) And when the President wants to assert a power and establish a precedent, he faces neither the collective-action problems nor the procedural inertia inherent in the legislative process. The majority’s methodology thus all but guarantees the continuing aggrandizement of the Executive Branch."

​(Quoting Scalia, J., concurring in the judgment, slip p. 26.)​

A Debate on Originalism and Recess Appointments
Michael Ramsey

The Originalism Blog is pleased to host, over the next day or so, a debate on originalism and the Supreme Court's Noel Canning decision between two of my cross-town colleagues: Bryan Wildenthal and Steven Semeraro, both Professors of Law at Thomas Jefferson School of Law (and both of whom I have known since the time we were law students together).

We have had this planned for a while but my travel schedule prevented me from finalizing it until now.  Welcome to Bryan and Steven.

Randy Kozel:Second Thoughts About the First Amendment
Michael Ramsey

Randy Kozel (Notre Dame Law School) has posted Second Thoughts About the First Amendment on SSRN. Here is the abstract:

The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech.

Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article contends that within the First Amendment context, there is no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.

The best explanation for this phenomenon is the role of free speech in the constitutional order. The Court’s tendency is to characterize affronts to expressive liberty as dangerous steps toward governmental repression and distortion. From this perspective, it is little wonder that the Court eschews continuity with the past. Legal stability may be significant, but official orthodoxy seems like an excessive price to pay.

Yet the Court’s practice raises serious questions. Departures from precedent can be problematic, especially when they become so frequent as to compromise the notion of constitutional law as enduring and impersonal. If the doctrine of stare decisis is to serve its core functions of stabilizing and unifying constitutional law across time, the desire to protect expressive liberty must yield, at least occasionally, to the need for keeping faith with the past.


An Originalist Future
Mike Rappaport

John McGinnis and I have a new essay, An Originalist Future, describing what the world would like if originalism became the dominant method of constitutional interpretation.  See here and here.   It is based in part on the last chapter of our book, Originalism and the Good Constitution, but goes beyond that chapter.

In the essay, we write:

Reviving a comprehensive originalism would greatly improve our polity, creating both better judicial decisions and a more vigorous constitutional politics.  It is a world where constitutional decisions would have good consequences and constitution making would become both popular and future-oriented.  It bears no resemblance to the world which critics of originalism fear—where the dead hand of the past traps the living into a dead end of anachronistic principles.  Only through a systematically originalist jurisprudence can constitutional law become what it must be if it is to act as the true rudder of the nation–simultaneously law that is unchanging and objective, law that is of high quality, and law that is subject to revision by the people of each generation.

One of the basic points of the essay is that if the Supreme Court refuses to update the Constitution – if it simply decides cases based on the original meaning – then the only way to update the Constitution will be through the constitutional amendment process.  While that process has now been superseded by Supreme Court judicial updating, a return to originalism would revive that process.  Once again, the people of the United States could undertake to decide on the content of their fundamental charter rather than leaving that task to the whims of a majority of 9 Justices.

(Cross posted at the Liberty Law Blog)

James Fleming: The Inclusiveness of the New Originalism
Michael Ramsey

James Fleming (Boston University - School of Law) has posted The Inclusiveness of the New Originalism (82 Fordham Law Review 433 (2013)) on SSRN. Here is the abstract:

In tracing the arc of originalism from the old originalism to the new, I observe a shift from an exclusionary outlook to an inclusionary outlook, reflected in new originalists’ proclamations that “we are all originalists now.” As my title suggests, I am going to bring out the inclusiveness of the new originalism and ponder its implications. The new originalists have emphasized two developments: (1) the movement from a focus on “intention of the framers” to “original public meaning” and (2) the articulation of and emphasis on the distinction between interpretation and construction. My main points are two. First, the inclusiveness of the new originalism (for example, that it countenances construction and “multiple modalities” in constitutional law, not just interpretation as the old originalists understood it) shows that it will require the very judgments that proponents of the moral reading have argued are necessary in constitutional interpretation and construction (and that old originalists asserted were illegitimate). Indeed, this inclusiveness points toward the possibility of reconciliation between certain forms of the new originalism and the moral reading that I defend. But second, I shall sketch a cautionary tale about the movement within originalism from “intention of the framers” to “original public meaning.” For example, in Justice Scalia’s hands, resort to original public meaning over and against the purposes of constitutional amendment as expressed by the framers and ratifiers in their language and debates may blunt the very possibility of constitutional transformation through amendment.


Myron Magnet: It’s Not Your Founding Fathers’ Republic Any More
Michael Ramsey

At City Journal, Myron Magnet: It’s Not Your Founding Fathers’ Republic Any More (commenting on recent books by Adam Freedman [The Naked Constitution], Mark R. Levin [The Liberty Amendments], Richard A. Epstein [The Classical Liberal Constitution], and Philip K. Howard [The Rule of Nobody]).  From the introduction:

... As these books show, all branches of government conspired over more than a century to turn the Constitution that the Framers wrote in 1787, plus the Bill of Rights that James Madison shepherded through the first Congress in 1789 and the Fourteenth Amendment ratified in 1868, into something their authors would neither recognize nor endorse.

The signal feature of the 1787 Constitution was its prudent restraint. The Framers learned from hard Revolutionary War experience that their new nation needed a more powerful central government than the Articles of Confederation authorized. But they bestowed the requisite powers with a trembling hand, knowing that the men who would exercise them were not angels but humans, as fallible as all other men—and usually more so, since overweening ambition and self-interest, not patriotism, are the standard spurs to seeking office. Recognizing that electing your officials doesn’t ensure that they won’t become as tyrannical as the hereditary monarchs the colonists had fled, the Framers’ hemmed in and divided government authority, giving Congress only 19 specific powers that mostly concerned raising taxes, coining money, spending it on “the common Defence and general Welfare of the United States” (meaning keeping the country safe), building post offices and post roads (but not turnpikes and canals), regulating the armed forces, and making laws necessary and proper to carry out these limited functions. Constitution architect James Madison, always at the vortex of the fierce disputes over what measures these enumerated powers implied as necessary and proper, concluded—after serving for a quarter-century as a congressman, secretary of state, and president—that the bedrock constitutional principle was simply to ensure that America does not “convert a limited into an unlimited Govt.”


Judge Brett Kavanaugh: The Enduring Significance of the Precise Text of the Constitution
Michael Ramsey

In the current issue of the Notre Dame Law Review, Brett M. Kavanaugh (D.C. Circuit) has the essay Our Anchor for 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution.  Here is the abstract:

When one comes to Notre Dame, whether for a law review symposium or for a football game or for both, your mind is drawn to fundamentals and history.  This is a place that oozes history, and in that vein, I want to take a step back and focus on the text of our Constitution.  I want to focus on that text in two dimensions.  First, I want to explain how the text of the Constitution creates a structure—a separation of powers—that protects liberty.  And in particular, I want to emphasize how that structure tilts toward liberty, how it creates legislative and executive branches with finely specified powers so as to protect individual liberty against oppressive legislation.  Second, I want to focus on the role of the Supreme Court in that constitutional structure—and how the Court itself looks to the precise words of the constitutional text both to preserve the separation of powers established by the Constitution and to protect individual liberty.  My overriding message will be that one factor matters above all in constitutional interpretation and in understanding the grand sweep of constitutional jurisprudence—and that one factor is the precise wording of the constitutional text.  It’s not the only factor, but it’s the anchor, the magnet, the most important factor that directs and explains much of constitutional law, particularly in the realm of separation of powers.


Richard Samuelson on the Halbig litigation and Chevron Deference
Micahel Ramsey

At Liberty Law Blog, Richard Samuelson (CSU San Bernardino, History): Time to Rethink the Chevron Doctrine.  An excerpt:

It is ... worth asking whether the Chevron Doctrine is itself mistaken. I would argue that it has deeply troubling implications for republican self-government. When “We the People” created the federal government, giving it certain powers, we ratified the Constitution. It established three branches of government: legislative, executive, and judicial. If the branches are to be equals, each must have an equal right to interpret the Constitution. Failing that, the branches cannot be equal. The Congress is also “the People’s House.” The legislative power is in Article 1 of the Constitution for a reason. The men who wrote and ratified it believed that the legislative branch, being closest to the people, was the most important. That being the case, it is entirely reasonable for federal courts, although  part of an equal and independent branch, to pay Congress a great deal of deference. It should presume that Congress would not intentionally violate the Constitution.


A like deference emphatically is not owed to the federal bureaucracy.  ...

... Precisely because it is problematic, from the perspective of having a government of, by, and for the people, to have our legal code written by bureaucrats, if there is a question of statutory construction, the general rule should be against the expansion of the Fourth Branch’s power. If such power is needed, then the people’s representatives can pass another law adding it.

Plus a strong response in the comments from "Grant", beginning: "While I am also troubled by the excesses of the adminsitrative state, the path that you propose is a path towards less democracy and more activism, just by a different group."

Scott Lemieux on Bruce Allen Murphy on Scalia
Michael Ramsey

Scott Lemieux (Lawyers, Guns and Money) comments (harshly) on Bruce Allen Murphy's Scalia: A Court of One: Murphy's Hamdi Botch.  From the conclusion:

[I]n an extreme form it [the error on Hamdi] illustrates why Scalia: A Court of One is a major disappointment ... [A] lot of the book is taken up with Murphy’s analysis of what Scalia contributes to the United States Reports, and this really isn’t Murphy’s strong suit. Again, the hash [Murphy] makes of Hamdi seems to be an outlier, but he’s sometimes shaky on basic concepts (“the Court defers to a state’s laws because a rational person would agree with them” isn’t really what the “rational basis” test means) and even when his doctrinal analysis is unobjectionable it’s pedestrian.

(Via Ed Whelan, who adds his thoughts here).


Zachary Clopton: State Law Litigation of International Norms
Michael Ramsey

Zachary Clopton (University of Chicago Law School) has posted two related articles on SSRN.  The first is State Law Litigation of International Norms: Horizontal and Vertical Dimensions (108 American Society of International Law Proceedings __ (2014 forthcoming)); here is the abstract:

For decades, scholars of international litigation focused their attention on the federal courts. The combination of diversity, alienage, federal question and Alien Tort Statute (ATS) jurisdiction largely justified this focus, opening multiple avenues for litigants to prosecute claims in federal courts. In recent years, however, the federal courts have closed some doors to international litigation. In response, international litigators have turned their gaze to state courts. This panel is but one example of this new direction. For an excellent earlier treatment of this topic, the U.C. Irvine Law Review published a symposium issue in 2013 dedicated to human rights litigation in state courts and under state law. [Ed.: Here is the introduction to that symposium.]

Within this new domain of U.S. states and international law, the focus justifiably has been on causes of action derived from common-law sources (whether in state or federal courts): (i) state law; (ii) foreign law, through state choice of law rules, and (iii) international law, also through state choice of law. What unites these categories is that courts are responsible for the relevant lawmaking choices. But state political branches also can engage with international norms. Examining the current and potential roles for state political branches permits an examination of doctrinal and theoretical questions in state litigation. First, I will offer some examples (real and hypothetical) of state political branch involvement. Then I will discuss two sets of inquiries in these cases: vertical debates about federal versus state actors, and horizontal debates about courts versus political branches. Third, I will discuss federal court doctrines that could limit state-level litigation, but I will do so in light of these horizontal and vertical dimensions. Finally, I will comment briefly on how state political branch involvement could play out with respect to the litigation of international norms.

The second is Executive Foreign Policy and the States: Recent Developments (111 Michigan Law Review First Impressions 28 (2012)) on SSRN. Here is the abstract:

On February 23 of this year, the Ninth Circuit Court of Appeals invalidated a California statute permitting victims of the Armenian genocide to file insurance claims, finding that the state's use of the label "Genocide" intruded on the federal government's conduct of foreign affairs. This decision, Movsesian v. Versicherung AG, addresses foreign affairs federalism — the division of authority between the states and the federal government. Just one month later, the Supreme Court weighed in on another foreign affairs issue: the separation of foreign relations powers within the federal government. In Zivotofsky v. Clinton, the Supreme Court ordered the lower courts to help referee a conflict between the executive and legislative branches of the federal government concerning how Jerusalem — born American citizens list their country of birth on their passports. The former case presented an issue of federalism and the latter an issue of separation of powers; yet both cases sought to delineate foreign affairs authority in the United States.

This Essay addresses the relationship between the states and the federal executive in foreign affairs — a federalism question — in light of coming separation-of-powers decisions. Part I briefly outlines foreign affairs federalism: how far into foreign affairs may states reach without stepping into the federal government's exclusive terrain? Part II looks at a particular permutation of this federalism debate, examining the conflict between the states and the national executive. Movsesian, the Armenian genocide case, highlights this state-executive clash. The panel and en banc opinions in Movsesian offered two different approaches to this federalism question, both of which present textual and practical difficulties. Having laid out the problems with these approaches, Part III looks for answers in an unlikely place: decisions about the separation of powers within the federal government. In Zivotofsky, the Supreme Court called for increased judicial participation in contests between Congress and the President in foreign affairs. This command will produce a body of law defining the sphere of exclusive executive authority vis-à-vis Congress. Synthesizing these decisions, Part IV argues that, for structural and pragmatic reasons, courts should bar states as well as Congress from this exclusive executive sphere. The Supreme Court has called upon the courts to articulate the boundaries of executive and legislative authority within the federal government, but in so doing, the courts indirectly will provide guidance about the division between the federal government and the states.

My take on these issues from an originalist perspective is somewhat different, see here, here and here.


Caleb Nelson: The Legitimacy of (Some) Federal Common Law
Michael Ramsey

Caleb Nelson (University of Virginia School of Law) has posted The Legitimacy of (Some) Federal Common Law (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:

Much of the modern debate over federal common law starts from the premise that when courts articulate rules of decision as a matter of unwritten law, they are "making law" in a robust, quasi-legislative sense. For people who deny that federal courts have inherent authority to invent their own rules of decision, the logical conclusion is simple: federal common law is legitimate only where the Constitution or Congress gives the federal courts a special delegation of lawmaking power.

That conclusion, however, does not fit our legal system very well. On the one hand, it may discourage courts from recognizing even widely accepted principles of common law in enclaves of federal preemption. On the other hand, the need to recognize some unwritten law in those enclaves may make judges strain to read federal statutes or constitutional provisions as implicitly delegating quasi-legislative power to the federal courts. Where federal judges think they have such power, moreover, they may end up indulging their own policy preferences at the expense of other sources of unwritten law. By the same token, the arguments advanced by some skeptics of federal common law may have the ironic effect of encouraging state judges to think that they are completely in charge of the unwritten law of their state and can legitimately articulate whatever rules they like

The root of all these problems lies in the skeptics' failure to distinguish rules of decision that courts make up out of whole cloth from rules of decision that reflect pre-existing sources (such as widespread customs or the collective thrust of precedents from the courts of the fifty states). While courts certainly shape even the latter sort of rules, and while the process by which courts do so can be described as a species of "lawmaking," it is not the type of lawmaking in which legislatures engage, and it might not require the sort of delegation that skeptics of federal common law have in mind.


James Fleming: Are We All Originalists Now? I Hope Not!
Michael Ramsey

James Fleming (Boston University - School of Law) has posted Are We All Originalists Now? I Hope Not! (91 Texas Law Review 1785 (2013)) on SSRN. Here is the abstract:

In recent years, some have asked: “Are we all originalists now?” My response is: “I hope not!” In the Article, I explain why. But first, I show that there is a trick in the question: Even to pose the question “Are we all originalists now?” suggests that one is presupposing what I shall call “the originalist premise.” To answer the question affirmatively certainly shows that one is presupposing it. The originalist premise is the assumption that originalism, rightly conceived, is the best, or indeed the only, conception of fidelity in constitutional interpretation. Put more strongly, it is the assumption that originalism, rightly conceived, has to be the best, or indeed the only, conception of constitutional interpretation. Why so? Because originalism, rightly conceived, just has to be. By definition. In the nature of things — in the nature of the Constitution, in the nature of law, in the nature of interpretation, in the nature of fidelity in constitutional interpretation! I will sketch some of the problematic assumptions underlying this premise (and thus underlying the projects of many scholars who seek to reconstruct originalism or to put forward new originalisms). Worse yet, raising the question “Are we all originalists now?” may presuppose that we all have come around to Justice Antonin Scalia’s and Robert Bork’s ways of thinking, without conceding that many versions of originalism themselves have been moving targets that have moved considerably toward the positions of their critics.

If I hope we are not all originalists now, what do I hope we (at least some of us) are? Much of the best work in constitutional theory today is not originalist in either an old or a new sense; rather, it is what I have called “constructivist.” I am interested in developing a constructivist account of the uses of history in constitutional interpretation. A constructivist world would look somewhat like the pre-originalist world (that is, the pre-Borkian world), although it would be far more sophisticated theoretically than that world was. It would treat original meaning as one source of constitutional meaning among several, not the exclusive source, let alone the exclusive legitimate theory. It would use history for what it teaches rather than for what it purportedly decides for us. In a constructivist world, we would understand that history is a jumble of open possibilities, not authoritative, determinate answers. We would understand that we — self-styled originalists no less than the rest of us — always read the past selectively, from the standpoint of the present, in anticipation of the future. We look to the past, not for authoritative answers, but for illumination about our experience and our commitments. Finally, we would understand that it dishonors the past to pretend — in the name of originalism — that it authoritatively decides questions for us, and to pretend that it avoids the burden of making normative arguments about the meaning of our commitments to abstract moral principles and ends. I argue that fidelity in interpreting the Constitution as written requires a philosophic approach to constitutional interpretation. No approach — including no version of originalism — can responsibly avoid philosophic reflection and choice in interpreting the Constitution.


Josh Blackman: State Judicial Sovereignty
Michael Ramsey

Josh Blackman (South Texas College of Law) has posted State Judicial Sovereignty on SSRN. Here is the abstract:

In our “dual sovereignty,” we have a dual judiciary. While the Constitution creates a single Supreme Court, and gives Congress the power to constitute inferior tribunals, predating our federal union were the courts of the states. Through concurrent jurisdiction, these courts, subject to the complete control of the states, were deemed parallel forums to adjudicate federal claims. Yet, in specific areas, Congress designated the federal courts as the exclusive forums of certain federal claims, depriving the state courts of that jurisdiction. In other areas, the Supreme Court has determined that state courts, with or without the consent of the state, are required to entertain certain federal causes of action.

Each of these well-known features of our judicial system — concurrent, mandatory, and exclusive jurisdiction — represents efforts by one sovereign, the federal government, to command and control the jurisdiction of another sovereign, the states. Though the power to mandate, and exclude state court jurisdiction has been construed broadly, certain limits have been placed on this authority based on a respect for the autonomy of each state to manage their courts. I refer to the basis of these constraints on federal power as state judicial sovereignty. State judicial sovereignty refers to the power of states to vest their courts with subject matter jurisdiction to hear, or not to hear, federal causes of action.

This article articulates a framework to explain how the autonomy of the states to control their own courts interacts with Congress’s efforts to use, or disregard the state courts for federal claims. Building on the analysis of concurrent, mandatory, and exclusive jurisdiction, I identify three attributes of state judicial sovereignty that are repeated throughout the Court’s precedents. First, state judge sovereignty refers to the constitutional obligations and state-law duties, of state judges with respect to federal causes of action. Second, state jurisdictional sovereignty, explains the autonomy of the states to vest their state courts with jurisdiction, subject to the strictures of the federal constitution. Third, state judge sovereignty, working under the auspices of state jurisdictional sovereignty, places a limit on the federal government’s power to regulate the state court, based on the anti-commandeering principle.

The bounds of federal authority over the way state courts conduct their business have remained undefined for over 200 years. This article aims to bring some clarity to those boundaries.


Evan Zoldan: The 'Professional' Meaning of the Ex Post Facto Clauses
Michael Ramsey

Evan Zoldan (University of Toledo College of Law) has posted The 'Professional' Meaning of the Ex Post Facto Clauses on SSRN. Here is the abstract:

Since its decision in Calder v. Bull, the Supreme Court has held consistently that the Ex Post Facto Clauses apply only to retroactive criminal, as opposed to civil, laws. Nevertheless, there continues to be significant scholarly debate over the original meaning of the clauses. Relying on sources contemporaneous with the framing of the Constitution, like treatises, newspaper articles, and notes from the debates in the Philadelphia Convention, some scholars conclude that the original meaning of the Ex Post Facto Clauses includes civil as well as criminal statutes; others, relying largely on this same evidence, conclude that the original meaning reaches only criminal statutes.

The key to resolving the dispute between these two camps of scholars lies in uncovering the “professional” meaning of the Ex Post Facto Clauses, that is, the meaning of the phrase “ex post facto” as it was used by the professional community of American judges and lawyers in the course of their work in the years leading up to the framing of the Constitution. The professional meaning of the phrase ex post facto has always been, and continues to be, the focal point for discussion of the original understanding of the Ex Post Facto Clauses; nevertheless, historical evidence of the professional meaning of the phrase ex post facto has been all but unexamined.

In this article, I seek to resolve the debate over the original understanding of the Ex Post Facto Clauses by examining undeveloped evidence of the professional meaning of the phrase ex post facto. I conclude that the professional meaning of the phrase ex post facto, and original understanding of the Ex Post Facto Clauses, includes retroactive civil, as well as criminal, laws. Finally, even leaving aside these historical arguments, the story of uncovering the professional meaning of the Ex Post Facto Clauses suggests that there are prudential, doctrinal, and structural reasons for reconsidering Calder’s limitation on the scope of the clauses.


Originalism and Positivism: The Problem of Interpretive Contestation
Mike Rappaport

I have written various posts about originalism and positivism.  Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles.  It is not a mistake I will make again.

I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably.  In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism).  He explores how various theories would address the issue, including natural law theory, positivism, and Dworkin’s interpretive theory.

At the end of the article, his discussion of positivism addresses what in essence is my solution to the problem.  In my view, certain forms of originalism and nonoriginalism are now accepted as law and therefore either can be employed.  The reason is that (1) there are a significant number of people or officials who accept these interpretive methods, (2) decisions reached according to them are disagreed with but not treated as illegal, and therefore (3) the rule of recognition appears to accept both interpretive approaches.

Matt has two objections to this solution.  First, he argues that this solution means that a large number of legal cases involve indeterminacy and therefore neither the majorities in those cases nor the dissenters “were determinately legally correct.”

The question is whether this is a bug or a feature.  I share the concern that such indeterminacy is undesirable as a normative matter, but as a descriptive matter it accurately captures our constitutional practice.  It is generally recognized that hard cases go to the Supreme Court, where the court will split as to the correct resolution.  It is accepted that the Supreme Court gets to decides these cases (so long as it uses acceptable methods).  We may not like it, but that is how our system functions.  If a description of our legal system did not acknowledge this legal indeterminacy, it would be problematic.

Matt’s second objection to the solution that both originalism and nonoriginalism are allowed is that it would suggest that judges and scholars who debate interpretive methods are confused about the law.  They are “confused” because they treat their solution as the legally correct one and other side’s solution as legally incorrect, even though “no method is determinately correct.”

I don’t buy this objection either.  There is nothing problematic in different judges each believing that their view is the better view – the one more likely to be correct.  When they say it is correct, they don’t deny that others believe otherwise.  Nor are they saying that it follows clearly from accepted premises.  Instead, they believe they are correct but recognize that others have a different view (and that different view cannot be ruled out in the same way that deciding cases based on astrology would be).  It is similar to the disagreement about a difficult case involving arguments based on text, structure, history, purpose, tradition and normative desirability.  Just as the justices disagree about the resolution of the case based on these various criteria, so to do the justices disagree about the appropriate interpretive approaches based on multiple criteria.

Finally, it is true that an individual case produces a precedent and therefore some stable resolution, whereas interpretive disagreements continue.  But that is the result of the fact that precedent is not applied to interpretive matters.  The Supreme Court decides case 1 based on originalism and then case 2 based on nonoriginalism.  But no one argues that it failed to follow precedent.  So the problem of interpretive disagreement continues.  But that does not mean that the Court’s disagreement about interpretive approaches is any less legal than its disagreements about particular cases.