Frank Buckley on Constitution Day and the September 3 Constitution
Michael Ramsey

At NRO, Frank Buckley (author of The Once and Future King):  Two Cheers for Constitution Day! -- With the benefit of hindsight, the Framers might prefer the Constitution they didn’t sign.  From the introduction:

Two hundred and twenty-seven years ago the Framers devised the wisest constitution then known to man. That was on September 3, 1787. Unfortunately, they then began to tamper with it, and the document they signed two weeks later has given us the maladies that now beset us.

What was the difference between the two constitutions? On September 3 the delegates had arrived at what they thought were two settled principles. The first was that Congress should appoint the president. Over the prior three and a half months, they had voted six times for a congressionally appointed president. At no time did they vote for a popularly elected president. The second principle was that the president might be removed by a simple majority vote in the Senate, after impeachment in the House. The senators, moreover, might do so whenever they thought the president was failing on the job and guilty of “maladministration.”

Some worthwhile pushback in the comments, too.

Should Congress Adopt a New Independent Counsel Statute?  The Constitutional Issues
Mike Rappaport

One of the principal concerns about the Obama Administration are the scandals and the claims that it is violating the law.  And sadly the congressional investigation process does not seem to be adequately doing its job.  Thus, it is worthwhile thinking about alternative institutions.

The principal method used back in the 80s and 90s was the independent counsel (IC). Unfortunately, the independent counsel was both unconstitutional (for the reasons discussed in Justice Scalia’s dissent in Morrison v. Olson) and subject to serious problems. But while the original IC statute had these problems, that does not preclude employing a reformed IC to investigate the executive branch.

Let’s start with the unconstitutionality of the original IC. Under the old regime, the IC was not subject to the direction of the President and therefore in my view was unconstitutional. In addition, the IC was appointed by a court on the ground that he was an inferior officer, even though he was clearly in my view a principal officer who could be appointed only by the President with the advice and consent of the Senate.

Both of these problems are rectifiable. First, the IC could be made formally subject to the direction of the President. The statute might provide that the IC is subject to the direction of and removal by the President, but that the Congress believes that presidential direction of the IC would be problematic as a policy matter and requests that the President not direct the IC. The statute might also require the IC to disclose to the public if the President gave him a direction and to keep notes of what the direction was. It is likely under this arrangement that the President would not give any orders to the IC, because he would pay a significant political price for doing so.

Second, the IC should be treated as a principal officer who is appointed by the President with the advice and consent of the Senate.  This creates an issue, since the President might nominate someone who is a loyalist and will not vigorously investigate his administration. To guard against this, the Senate would have to confirm only independent nominees.  If the Senate were controlled by the party opposing the President, this would be likely to occur.  If the Senate were controlled by the President’s party, then it is possible that they would confirm a less than fully independent IC, but by no means certain since the Senators might not want the political damage from appearing to protect improperly the President.  To guard against this, the statute could require that the IC be a member of the party opposing the President. (Alternatively or perhaps in addition, the statute could provide that a qualification of being an IC is to be independent of the President and the IC should not have any significant connections with either the President, his administration, or his party.)

Through these mechanisms, the IC would be constitutional, but would retain significant independence to conduct his investigation. It is true that the IC would not be as fully independent of the President as was the IC under the old regime.  But the desire to get 100 percent independence rather than the 90 percent my proposal provides is what rendered the old statute unconstitutional.

Next time, I will address some of the policy issues with the IC.

David Brink: Originalism and Constructive Interpretation
Michael Ramsey

David Brink (University of San Diego School of Law) has posted Originalism and Constructive Interpretation on SSRN. Here is the abstract: 

This essay argues that a number of Dworkin’s signature jurisprudential claims -- including his criticism of Hart’s model of rules, his moralized reading of the Constitution, and his defense of constructive interpretation -- cohere reasonably well around a distinctive form of originalism -- originalism of principle. This may seem surprising because originalist insistence on fidelity to the original meaning of constitutional language or the intentions of the framers is often seen as the antithesis of the sort of moralized interpretation that Dworkin defends, and Dworkin explicitly criticizes some forms of originalism. But there are different ways of understanding meaning and intention and fidelity to either. Dworkin consistently opposed conceptions of interpretation that would constrain the meaning of legal provisions by conventional beliefs about the extension of the language in which those provisions are formulated or by the framers’ conceptions of the normative concepts underlying those provisions. That opposition reflects a plausible view about the semantics of legal disagreement. If we associated originalism with these discredited semantic assumptions, then Dworkin should be a critic of originalism. But once we are clear about the semantic mistake such interpretive conceptions make, we can understand why Dworkin was attracted to a different form of originalism -- an originalism of principle according to which interpreters must ascertain the best conception of the normative concepts that the framers of the provision introduced. This kind of originalism of principle can be understood either as fidelity to the correct public meaning of legal provisions or as fidelity to the abstract intentions of the framers of those provisions. Either way, it implies that the interpretation of legal provisions employing normative concepts cannot be done without making and defending substantive normative commitments about the extension of those concepts. Originalism of principle is an important part of constructive interpretation, but it does not exhaust constructive interpretation, because constructive interpretation includes in its account of fit a role for precedent and continuity of interpretive conception. But within constructive interpretation interpretive history and sameness of conception have only pro tanto significance that can be overridden when a rival conception is sufficiently normatively superior.


The Constitution and Omega Glory
Mike Rappaport

Recently, Bryan Caplan put up a Facebook post by “political scientist and game designer Chris McGlothlin” on the Star Trek episode Omega Glory.  That is the one where Kirk goes to a planet and instructs the Yangs about their document, “The Constitution of the United States.”  The Yangs – through centuries of decline – cannot even read the document properly and do not understand its meaning.  Kirk corrects them.  For many originalists, Omega Glory is a metaphorical tale of how the Supreme Court and the modern legal culture have misunderstood the Constitution.

McGlothlin doesn’t seem to like the episode, but to my mind his post makes one mistake after another.  First, he writes that “we never see a copy of the Bill of Rights in the bundle of aged parchments Kirk leaves them. . . . Without the Amendments, those Kohms are goners.

I am not sure what this point is supposed to mean.  The Bill of Rights is part of the Constitution, so what is the problem?  Moreover, the Bill of Rights is important, but these amendments are hardly the only important ones.  The original Bill applied only to the federal government.  If one wants additional protections against the states, one has to look to the 14th Amendment.  And one must look there (and elsewhere) for equality limitations.  The unamended Constitution was a great start, but one of the best things about the Constitution is that it provided for amendments, which continued to improve the document.

Second, McGlothlin writes: “And since there's no mention of judicial review in any of the documents they have, the Kohms had better hope this planet's copycat nature includes a Arburymay v. Adisonmay (or whatever they'd call it) on the docket soon. Otherwise, we're once again left with dead Kohms stacked up like cordwood.”  Again, there is quite a bit wrong with this view.  It is simply wrong to suggest that the original Constitution did not provide for judicial review.  The Supremacy Clause specifically refers to judicial review of state laws and other provisions make clear that judicial review applies to federal law as well.

And while judicial review is fine, it is hardly the only check in the Constitution.  Without impeachment or midterm elections or other provisions, the President might not even listen to the Supreme Court.

Harold Anthony Lloyd: Real-World Semantics and Fictions of Originalism
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Plane Meaning and Thought: Real-World Semantics and Fictions of Originalism on SSRN. Here is the abstract: 

This article explores how meaning and thought work in the real-world of human experience. In doing so, it explores five basic planes or levels of such meaning and thought: references, issues, rules, applications of rules, and conclusions. It also explores framing, metaphor, and narrative in constructing such planes or levels of meaning and thought as well as some basic resulting forms of thought. Additionally, it examines original meaning as a cautionary negative example of how real-world meaning and thought do not and cannot work. Given the flexibility of framing involved in the multiple levels of real-world meaning and thought, originalism cannot sustain its claims of greater objectivity when compared to other interpretive approaches.


Reinvigorating the Nondelegation Doctrine through the Constitutional Amendment Process
Mike Rappaport

One of the ways that small government and democratic accountability could be promoted in the modern world is through the reinvigoration of the nondelegation doctrine.  Under that doctrine, administrative agencies would be prohibited from making discretionary legislative decisions and therefore Congress would have to do so.  If Congress, rather than administrative agencies, were to make the discretionary legislative decisions, this would both reduce the number of regulations that were enacted and would ensure that members of Congress would have to be responsible for their decisions.  By contrast, under the current system of delegation, the administrative agencies can use the efficiency of the administrative process to pass large numbers of regulations and members of Congress can avoid accountability for these regulations, always claiming that they did not intend any particular regulation which might turn out to be unpopular or controversial.

One common argument against reinvigorating the nondelegation doctrine is that it is not possible in the modern world.  Congress has neither the expertise nor the time to enact all of these regulations.  But this is not actually a good argument.  There is a method that would allow Congress to make these decisions, even assuming that it does not have the expertise or time to do so.

Under a well known proposal, all substantial regulations would have to receive the approval of Congress to become law.  The administrative agency would propose the regulation in much the same way it does now.  Thus, it would reflect the agency’s expertise as well as the efficiency and speed of the administrative process.  But the regulation would not go into effect unless it was approved by the Congress. 

To ensure that Congress took action in a quick manner, congressional rules would fast track these regulations.  They would be required to be brought to the floor within a limited period of time, there would be limited debate, and there would be no amendments allowed.  (Under a variation of the proposal, one might allow an amendment to be proposed with a supermajority of the house’s approval.)  Each house would then have to vote up or down on the regulation, and if it passed, it would be sent to the President.  Since it would then be a law, there would be no delegation to the agency.

The problem with this approach is not that it is unworkable or undesirable.  The problem is that one very powerful entity would hate it – the Congress.  They would be required to take positions on legislation with very little power to amend the statute or to obfuscate.  Congress will never pass such a reform.

The Constitution does allow a way to adopt such a provision.  It could be passed as a constitutional amendment through the convention method for amending the Constitution.  The states could apply for a constitutional convention, the convention could adopt the procedure, and the states could ratify the amendment.  While it might or might not pass, it would at least having a fighting chance and not have to overcome an entity with a conflict of interest.

Unfortunately, the convention method does not work, as I have described here and here.  The fear of a runaway convention, encouraged by law professors who often do not want that method interfering with Supreme Court decisions, means that there is never sufficient support for calling a convention.

Yet, as time passes, the list of amendments that would constrain Congress’s abuses and excesses only grows.  Add this nondelegation reform to the list.

Is the President Embracing the 2002 AUMF?
Michael Ramsey

This NYT report -- Obama Sees Iraq Resolution as a Legal Basis for Airstrikes, Official Says -- suggests that the President (or at least his legal team) is considering the 2002 AUMF as the authority for attacks on the Islamic State.  Per my previous posts (here and here) I think that's the right answer (and certainly better than reliance on the 2001 AUMF).

Josh Blackman comments: Is it the 2002 AUMF or the 2001 AUMF?   Jack Goldsmith comments: Obama Administration Claims that 2002 Iraq Resolution is a Legal Basis for Air Strikes Against the Islamic State [UPDATED].

Ilya Somin critiques the 2002 AUMF argument here:

Michael Ramsey offers a stronger version of the claim that the 2002 AUMF authorizes Obama’s actions. He notes that ISIS is in many ways a successor organization to some of the Sunni insurgents that US forces battled in Iraq in 2007-08. If the 2002 AUMF covers the fighting between US forces and ISIS’ predecessors back then, why not also Obama’s actions today? The answer, I think, is that the 2007-08 fighting was legally authorized not by the 2002 AUMF but because US forces had actually been attacked by the Sunni insurgents. US troops don’t need congressional authorization to defend themselves. But the US combat role in that conflict ended when American troops were withdrawn in 2011. President Obama himself has repeatedly said so. Therefore, today’s intervention against ISIS cannot be justified as a continuation of the fighting against Sunni insurgents several years ago. It is a new war and requires new congressional authorization.

This is a version of the critique Andrew Hyman made on this blog, and my response is similar: I think the withdrawal of troops in 2011 was a lull in a continuing war, which has now resumed (even if that is not how we saw it at the time).  What matters is the reality: is this the same enemy we have been fighting since at least 2007?  My answer is yes.  As a result, it's irrelevant that the U.S. combat role ended (briefly).  The President is entitled to suspend combat for a while without losing his authority to renew it as necessary, so long as it remains part of the same conflict.

Meanwhile, John Yoo endorses the 2002 AUMF, as well as the 2001 AUMF and independent presidential power, as the basis for the President's action:  The President Doesn’t Need Congress’s Approval to Attack ISIS -- But he should seek it anyway.  On the 2002 AUMF he argues:

Notice that [the 2002 AUMF] does not state that the authority is limited to overthrowing Saddam Hussein. It gives authority to the president to prevent national-security threats emanating from Iraq. The current such threat is that the Islamic State is developing a terrorist state with control over a large swath of Iraq, from which U.S. military and intelligence analysts believe the jihadist group will carry out attacks on the U.S. and its allies.

Furthermore, the relevant U.N. Security Council resolutions [referred to in the 2002 AUMF] committed the U.S. to the reconstruction of Iraq, its territorial integrity, and political independence, and authorized states to prevent Iraq from threatening the region’s peace and stability. While President Obama may wish that mission were completed, the rise of the Islamic State shows clearly that it is not. Air strikes on the Islamic State and military aid to friendly Iraqi forces fall within the actions authorized by the text of the AUMF.

I agree.  I think this may be the first time I have agreed with John on a war powers issue.

One further point: Jack Goldsmith notes (in the update here) that the administration might seek to rely on the 2002 AUMF to authorize the use of military force against IS in Iraqi territory but not the use of military force against IS in Syrian territory.  I don't think the President needs to read it so narrowly.

The 2002 authorization approves military force to:

defend the national security of the United States against the continuing threat posed by Iraq ...

As John Yoo argues, the "threat posed by Iraq" to the "national security of the United States" is that IS is using Iraqi territory to build a terrorist state.  That threat is intertwined with IS's use of bases in Syria to launch attacks into Iraq.  A very plausible way to defend the national security of the United States against the continuing threat posed by Iraq [that is, IS's control of Iraqi territory] is to attack IS's bases in Syria.  Indeed, one might say that a strategy focused only on IS in Iraqi territory, without taking account of IS's Syrian bases, is misconceived.  In any event, the 2002 AUMF has no geographic limits, so long as action taken under it is directed to mitigating the threat posed from Iraq.  Here, there is no doubt that attacking IS in Syria would be directed toward mitigating the threat posed from Iraq.


Andrew Koppelman: Scalia and Garner on Interpretation
Michael Ramsey

Andrew Koppelman (Northwestern University School of Law) has posted Passive Aggressive: Scalia and Garner on Interpretation (Boundary 2: An International Journal of Literature and Culture, Vol. 41, Summer 2014) on SSRN. Here is the abstract: 

Antonin Scalia’s coauthored treatise on legal interpretation is also a melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. The argument is weak and inconsistent with Scalia’s actual practice as a judge. The book nonetheless nicely accomplishes what it is trying to do. Scalia is one of the authors, to be sure, but he is also the protagonist of a narrative. The author’s preeminent concern is seeing to it that you perceive the protagonist as the author intends: as the champion of judicial restraint, against all those liberal oligarchs. If you buy the story of Virtuous Scalia, that empowers Judicial Activist Scalia.


John McGinnis on the Udall Amendment
Michael Ramsey

At Liberty Law Blog, John McGinnis comments on the proposed constitutional amendment being discussed by the Senate: Seizing the Opportunity to Revisit the Republic’s First Principles and The Silver Lining of a Very Bad Proposed Amendment.  From the latter:

... [T]rying to pass an amendment implicitly accepts that the way to change the Constitution is to pass a constitutional amendment, not simply get the Supreme Court to say what you think the Constitution should have said.  As Mike Rappaport and I have written, one of the great costs of judicial updating of the Constitution is that it has eroded the amendment process.

A debate about a constitutional amendment reminds us that We the People, not They the Justices, are responsible for constitutional change.   Trying to pass a constitutional amendment also forces advocates of change to persuade their fellow citizens. It requires them to make deals with those who may not fully share their principles in order to get a consensus to pass an amendment. The higher politics of amendment is necessarily a politics of compromise, the opposite of winner-take-all, bare majoritarian politics that can be so destructive of social cohesion.


Justin Driver on Bruce Murphy on Scalia
Michael Ramsey

In The New Republic, Justin Driver (Univ. of Chicago Law School): How Scalia's Beliefs Completely Changed the Supreme Court, and therefore, the country (reviewing -- unfavorably -- Bruce Allen Murphy, Scalia: A Court of One).  From the introduction:

... Scalia’s legacy ... would not be especially apparent from aggregating the landmark opinions that he has written on the Court’s behalf. This discrepancy does not mean that Scalia’s résumé is altogether lacking in this regard. During the last decade alone, Scalia has issued major opinions redefining the Second Amendment’s protection for firearms possession in District of Columbia v. Heller and the Sixth Amendment’s Confrontation Clause in Crawford v. Washington. Even accounting for Scalia’s many memorable opinions written in dissent would inadequately trace his legal imprint.

Instead of his influence being confined to a discrete set of writings or narrow doctrinal categories, Scalia has shaped modern American law in ways more overarching and even elemental. Elena Kagan, when she was dean of Harvard Law School, expressed this point vividly while presiding over Scalia’s return to his alma mater in 2007. “His views on textualism and originalism, his views on the role of judges in our society, on the 
practice of judging, have really transformed the terms of legal debate in this country,” Kagan said. “[Scalia] is the justice who has had the most important impact over the years on how we think and talk about the law.”

(Via Ed Whelan at NRO, who has favorable comments [on the review]: Devastating New Republic Review of Scalia Biography).

Also: Will Baude has thoughts here.

Further Thoughts on War Powers and the Islamic State
Michael Ramsey

Ilya Somin argues here that Congress must authorize the conflict with IS.  I agree with everything he says, especially (a) that reliance on the 2001 AUMF is a terrible argument and (b) that "[c]laims that large-scale air attacks don’t count as warfare were specious when the administration trotted them out in defense of its intervention in Libya in 2011; and they have not improved with age." But he does not discuss what I think are the better arguments the President could make.

Executive powers historian Louis Fisher has thoughts here, especially on why this is a war.  I agree with everything he says too  (as I usually do), but I don't think anything he says is inconsistent with what I said earlier.

Andrew Hyman emails to object to my reliance on the 2002 AUMF: 

The 2002 AUMF says: "The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to … defend the national security of the United States against the continuing threat posed by Iraq[.]"
Seems to me that the key word here is "continuing".  If that word were absent, then the AUMF could last forever.  Certainly the Obama administration has taken the position that Iraq posed no threat before ISIS moved into Iraq --- or moved back into Iraq --- from Syria.
That's a good point, and I agree with the basic premise that the threat must be "continuing" and some content must be given to that word.  So yes, if this were an entirely new threat -- if, say, Iraq had settled down and become a stable democracy for 10 years -- I agree that the AUMF could not suddenly spring back to life if Iraq got involved in a new conflict with, say, Iran.  But that's not the case here: as I argued previously, IS is just a new version -- a continuation -- of the forces the U.S. fought pursuant to the AUMF in 2007-08.
It's true that the President withdrew our forces in 2011 and made some statements he may now regret about the end of the war and the dawn of stability in Iraq.  But in hindsight we now see (and he now sees) that this was mistaken; the old threat never went away, and is now back with renewed force.  I think the President and the nation are entitled change their assessment of the facts and treat this as a continuation after a brief respite rather than a new conflict, despite some wishful thinking about the supposed end of the prior conflict.  It's quite common for conflicts to appear to die down for a while and then flare up again.  Again, the key is the common identity of the old enemy and the new enemy.  It's that fact on the ground that makes this a "continuing threat posed by Iraq."
Finally, Eli Lake at The Daily Beast  rounds up more commentary against the relevance of the 2001 AUMF.  Matt Welch (Reason) isn't impressed either: Obama's B.S. Justification for his Illegal War: The 2001 AUMF.  I think the 2001 AUMF argument is so bad it wouldn't be worth talking about if the administration wasn't making it. 


The President Does Not Need Further Authorization from Congress to Attack the Islamic State
Michael Ramsey

In an earlier post, I pointed out the challenges to arguing that the President needed Congress' approval to attack the Islamic State (IS).  Further reflection and some further events have convinced me that the answer is in fact fairly clear: no further authorization is needed.

To begin, I'll assume (a) that a conflict with a quasi-state entity such as IS is a war, (b) that the actions the President intends to take amount to war in the constitutional sense, and (c) under the original meaning of the declare war clause Congress must authorize all presidential initiations of war.  (I'm not sure either (a) or (b) is true, but assuming them simplifies the discussion.  For my argument on (c), see The Constitution's Text in Foreign Affairs, Chs. 11 & 12, and Textualism and War Powers, 68 U. Chi. L. Rev. 1543.)

The President can make two arguments, both independently persuasive.  First, Congress has authorized the use of military force against the threat posed by Iraq (the 2002 AUMF).  Under that authorization, President Bush not only ousted Saddam Hussein but also fought the Sunni insurgency that arose in western Iraq after a post-Saddam government was installed in Baghdad.  President Obama continued the latter conflict until he withdrew U.S. forces in 2011.  The IS is a direct descendant of the Sunni insurgent forces previously engaged by the U.S. in western Iraq -- indeed, it appears that it's really the same force, under a new name and a new leader (after prior leaders were killed by the U.S. and its Iraqi allies).  This detailed article traces the evolution of the group.  (Yes, its Wikipedia.  Students, don't do this on your research papers).  It states directly: "ISIS is the successor to … al-Qaeda in Iraq (AQI)—formed by Abu Musab Al Zarqawi ... which took part in the Iraqi insurgency against American-led forces and their Iraqi allies following the 2003 invasion of Iraq."

As a result, the 2002 AUMF covers the existing and contemplated conflict with IS (assuming it covered Bush's war against the Sunni insurgents in 2007-08, which I think everyone agrees it did).  If Obama had not withdrawn U.S. forces in 2011, it would be obvious that the current conflict is a continuation of the old (authorized) one.  But I do not see how what turned out to be a temporary U.S. disengagement terminated the 2002 authorization.  Surely a President can withdraw temporarily from a conflict without losing his authorization to reengage if he thinks (in the language of the AUMF) it is "necessary and appropriate" in order to "defend the national security of the United States against the continuing threat posed by Iraq".  Of course it would be different if the President had withdrawn at the direction of Congress (as was the case of Nixon in Vietnam), but that is not the case here.

Second, in my view of the Constitution's original meaning, the President does not need authorization to respond to a declaration of war against the United States.  The constitutional limit is only on war initiation and does not extend to wars begun by the other side.  Hamilton made this point strongly in connection with the U.S. engagement with Tripoli in 1801: "[W]hen a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary."  (see 69 U. Chi. L. Rev. 1629 & n. 319).  Note: this argument depends on the additional proposition that the President, in responding to an enemy's declaration, can not only defend against attacks but also take the offensive.  That was Hamilton's view, and I agree.  See this article (93 Cornell L. Rev. 169).

In my earlier post I raised the question whether IS had declared (by word or deed) war on the United States, but I equivocated on the answer.  Now I think it's more clear, based on the intervening beheading of U.S. journalists and IS's accompanying statements.  IS appears to regard itself as at war with the United States and to intend the beheadings as acts of war.  Moreover, the President's executive foreign affairs power gives him authority to judge the status of the U.S.-IS relationship; if he reasonably thinks their actions amount to a declaration of war, that judgment seems sufficient.

As a final point, does this analysis change if the President attacks IS in Syria?  I think not.  Attacking in Syria is part of the conflict in Iraq, since IS is using Syria as a base to attack Iraq.  So whether the President has Congress' authorization from the 2002 AUMF or is acting on his own, he is entitled to extend the war as needed to encompass the enemy's bases. 

It would be different if, in attacking IS in Syria, the President initiated a conflict with the Syrian government.  That, I think, would require Congress' approval as the start of war with a new enemy.  But IS is itself at war with the Syrian government, and its bases -- though geographically in Syria -- are not in areas controlled by the Syrian government.  An attack on IS in Syria would not have as its goal any coercion of the Syrian government (indeed, it might be welcomed by Syria, although I do not think overt or tacit approval by the Syrian government is required).

In sum, I am persuaded that the President does not need further congressional approval to attack IS (in Iraq or Syria), both because such attacks are authorized under the 2003 AUMF and because the President has independent authority to respond to IS's declaration of war against the U.S.

FURTHER NOTE:  Josh Blackman comments on the issue here, strongly suggesting that congressional authorization is needed.  He also notes that the adminstration is (apparently) claiming authorization under the post 9/11 2001 AUMF (authorizing the use of military force against the perpetrators of the 9/11 attacks and those that supported them).  See this post from Ben Wittes at Lawfare.  I agree with Blackman, Wittes and Robert Chesney that this argument is weak.  As Ben Wittes puts it,  

I have always supported the administration in taking a broad view of what it means to be an “associated force” under the AUMF. But “associated” does not mean “not associated” or “repudiated by” or “broken with” or even “used to be associated with.”

It's significant that the adminstration appears to be backing away from an Article II independent power to conduct the IS operation.  Even though I think in this particular case there is a good argument for Article II power, hesitancy to deploy it undermines the broader views of Article II authority that are, in my view, inconsistent with the original design.


Neil Buchanan on Textualism
Michael Ramsey

At Dorf on Law, Neil Buchanan: Hate Crimes, Chemical Weapons, and the Internal Revenue Code. Here is an excerpt: 

In his post here yesterday, Professor Dorf raised an interesting and important question about statutory interpretation, suggesting that perhaps current practices are "unduly influenced by textualism."  Discussing the Sixth Circuit's opinion in United States v. Miller, a hate crimes case, and Bond v. United States, a 2014 Supreme Court case interpreting a chemical weapons law, Professor Dorf suggested that even apparently clear statutory language can still be ambiguous in ways that might change the outcomes of cases.

The point is subtle, but exceedingly important.  Conventional wisdom, as Professor Dorf describes it, requires a two-part inquiry, in which "one first determines whether the text is clear, and only if the answer is no does one look to background purposes to determine the best interpretation."  This Chevron-style approach essentially says that apparent statutory purpose is always trumped by clear statutory language, no matter how clearly the two might diverge.  Professor Dorf's suggestion, with which I agree, is that knowing the purposes of a statute "can create ambiguity where the words alone do not appear to contain any."  That is, there is nothing wrong with the two-step approach, but we need to be more complete about our inquiry into what even apparently clear words of a statute could mean.

This is a very impressive post, of which the excerpt is only a small taste, but there really isn't anyway to capture it without reading all of it.  I am not sure, though, that he is saying anything textualists would disagree with.

Professor Dorf's post, linked above, is also well worth reading.


Originalism and the Two Narratives of Halbig (Updated)
Michael Ramsey

Halbig v. Burwell, the ACA subsidies case, has two competing narratives.  In one version, it is an epic battle between textualism and contextualism.  The statute (says one side) clearly says subsidies are available only for insurance exchanges "established by [a] State" and the federal exchange is obviously not established by a state.  But (says the other side) surely Congress could not have intended a situation in which subsidies were not available on the federal exchange, so to make sense of the statute one should not read it narrowly but with regard to what makes the most sense of Congress' intent.  Which side you are on depends on whether you pick text or intent.  See this post by Curt Levey: Obamacare Subsidies Rulings: It’s the Theory of Statutory Interpretation, Stupid (calling for a textual approach over an intent approach); compare this post by Rick Hasen: Bad Readers: The Judges that Ruled against Obamacare are Following Scalia Down a Terrible Path of Interpretation (calling for an approach based on the statute's "purpose" and "looking at the whole statute to make it coherent").

In the second version, it's a battle between good and bad textualism -- bad textualism being an approach that looks only to a single phrase in a single section, disregarding the rest of the statute and its clear (textual) import taken as a whole.  Which side you are on depends on whether you are a good textualist who looks to the whole statute and its enacting context, or a bad (and perhaps politically driven) textualist who looks to a single phrase in isolation.  See these posts by Abbe Gluck and Neil Siegel.

Which narrative prevails may go a long way in determining the ultimate result.  Narrative (1) might generate a Supreme Court majority for the challengers; narrative (2) likely would cause the Court to shun the case (assuming the en banc D.C. Circuit eliminates the circuit split.)

But I'm interested in a broader point: everyone is approaching this case as an originalist.  Every argument I have seen for allowing federal subsidies depends on the proposition that the Congress that enacted the ACA wanted federal subsidies (with the counterargument being that, even if so, Congress did not make that sufficiently clear in the text).  The debate is between text and intent, or between literal meaning and (original) contextual meaning. 

These debates are familiar to constitutional originalists, but they are usually regarded as internal debates among originalists, of only passing interest compared to the larger debate between originalism and non-originalism in constitutional interpretation.  Because Halbig is a statutory case, though, the only question seems to be how to identify the enacting Congress' prescription. 

That is not because non-originalist arguments would be implausible here.  Consider this one: regardless of what the enacting Congress thought of this particular issue (which probably can't be determined anyway), it's very likely that the enacting Congress assumed most or all states would create an exchange.  It has turned that a large number of states did not.  So we are in a different world from the enactors, and the law must be made to work for our world, not their world.  As a result, the best outcome is to allow subsidies on the federal exchange without regard to what the enactors wanted.

I would not be surprised if a number of the subsidies' defenders actually think of the problem in this way.  But that is not the way they argue it.  Why not?  Because for statutes, originalism is the dominant approach, even though we don't realize it because we don't use that name.

UPDATE: Simon Lazarus (Constitutional Accountability Center) makes some similar observations toward the end of this piece in the New Republic, which I had not previously seen:

ACA opponents ... evidently believe their chances of winning all five members of the Supreme Court’s conservative bloc will rise, if this brow-furrowing squabble over dense legislative terminology can be framed as an epochal front in a three-decade-old holy war between two schools of jurisprudential theory about how judges should interpret statutes.

“Purposivist” disciples may be tempted to seize upon the ACA premium assistance challenges to skewer their philosophical adversaries. ...  But thus broadening the stakes in these lawsuits is a mistake. The better—and accurate—tack is that opponents’ route to interpreting federal exchanges into self-immolation is so hyper-blinkered that it flouts bedrock axioms common to all legitimate interpretational theologies


New Book: Erwin Chemerinsky's "The Case Against the Supreme Court"
Michael Ramsey

Erwin Chemerinky's book The Case Against the Supreme Court (Viking 2014) is set for official release September 25.  Here is the book description from Amazon:

Most Americans share the perception that the Supreme Court is objective, but Erwin Chemerinsky, one of the country’s leading constitutional lawyers, shows that this is nonsense and always has been. The Court is made up of fallible individuals who base decisions on their own biases. Today, the Roberts Court is promoting a conservative agenda under the guise of following a neutral methodology, but notorious decisions, such as Bush vs. Gore and United Citizens, are hardly recent exceptions. This devastating book details, case by case, how the Court has largely failed throughout American history at its most important tasks and at the most important times.

Only someone of Chemerinsky’s stature and breadth of knowledge could take on this controversial topic. Powerfully arguing for term limits for justices and a reassessment of the institution as a whole, The Case Against the Supreme Court is a timely and important book that will be widely read and cited for decades to come.


Franita Tolson: Protecting Political Participation Through the Voter Qualifications Clause of Article I
Michael Ramsey

Franita Tolson (Florida State University - College of Law) has posted Protecting Political Participation Through the Voter Qualifications Clause of Article I (Boston College Law Review, forthcoming) on SSRN.  Here is the abstract:    

The Voter Qualifications Clause of Article I, Section 2 of the U.S. Constitution makes federal voting rights dependent upon participation in state elections. This Article argues that Article I incorporates both state constitutional law governing the right to vote and the democratic norms that existed within the states at the founding as the basis for determining the qualifications of federal electors. The democratic norms governing political participation can be traced to founding-era state constitutions that preserved the fundamental right of citizens to alter or abolish their governments at will, which was similar to the right of revolution exercised by the colonists against the British during the Revolutionary War. It is this understanding of the right to vote in federal elections, parasitic upon the robustly democratic notion of participation that existed at the state level and enshrined in state constitutional alter or abolish provisions, that the framers of the Constitution endorsed in the Voter Qualifications Clause of Article I. Contrary to this provision, the caselaw has divorced state and federal elections, resulting in excessive judicial deference to state regulations that govern the right to vote. As this Article shows, the Voter Qualifications Clause requires that states aggressively safeguard political participation in order to protect federal voting rights, which suggests that courts should apply a higher level of scrutiny in assessing the constitutionality of state election laws.


Jeffrey Toobin on Textualism and Halbig v. Burwell
Michael Ramsey

At The New Yorker, Jeffrey Toobin: Will Textualism Kill Obamacare?  From the introduction:

The case [Halbig] is the latest chapter of the legal assault on Obamacare, but it is also the most prominent instance of a larger fight over an ascendant legal theory known as textualism. This approach, which was pioneered and advocated by, most prominently, Justice Antonin Scalia, holds that courts should interpret laws based solely on their own terms, and not on the basis of the intent of the legislators who create the statute. As Scalia has written, “We are governed by laws, not by the intentions of legislators.” The words of the statute should always prevail, Scalia believes, over “unenacted legislative intent.”

That sounds right so far, but he then concludes:

The five appellate judges who voted to uphold the law were originally nominated by Democratic Presidents; the two who voted against it were chosen by Republicans. This reflects the real division over the Affordable Care Act–a political, rather than judicial, conflict. Textualism is not a dispassionate guide to a result; it’s merely a vehicle to a preferred outcome—the destruction of Obamacare.

I do not follow this conclusion at all.  Might it not be the case that Republican-appointed judges favor textualism as a legal theory and Democratic judges (at least in this case) don't?  Where is his proof that textualism wouldn't be a "dispassionate guide to a result" if everyone were following it?

To be sure, if textualism is ambiguous or if -- properly applied -- it points to the opposite result in Halbig, then Toobin might have a point.  (Abbe Gluck and Neil Siegel, among others, have made this argument).  But Toobin doesn't show either to be true.  Rather, what he says is consistent with textualism being a neutral approach that in this case, at least as the D.C. Circuit panel saw it, happens to lead to a conservative result.

To be clear, I am still not expressing any view on the merits of Halbig.

(Via Larry Solum at Legal Theory Blog, who also has some critical thoughts).

RELATED:  Corey Adwar has this commentary at Business Insider.

Brian Kalt on Benjamin Cassady and the Disqualification Clause
Michael Ramsey

Brian C. Kalt (Michigan State University College of Law) has posted The Application of the Disqualification Clause to Congress: A Response to Benjamin Cassady (Quinnipiac Law Review, forthcoming) on SSRN.  Here is the abstract:

This article is a response to Benjamin Cassady’s recent article, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify. It agrees with Your Crook that disqualification does not apply to election to the House or Senate, and that voters should have as free a hand as the Constitution will allow to elect representatives and senators that others in Congress might find scurrilous. The article focuses, however, on disagreements and distinctions. Part I critiques the nature of the structural claims in Your Crook. Part II examines the importance of the legal-process question: who decides whether a particular person is disqualified from a particular post? Part III looks at other elements of the constitutional structure that Your Crook does not consider. Part IV similarly fleshes out the question of disqualification and the presidency. Finally, Part V takes issue with Mr. Cassady’s application of the term “pardon” to the election of a previously disqualified or expelled person.

Thanks to Seth Barrett Tillman, who adds:

This paper is responding to Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014) [noted here]

Professor Kalt's paper will run with 3 other responses to Cassady. The responses will be by: Buckner F. Melton, Jr., Professor Petter C Hoffer, and by me. See Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. (forthcoming circa Dec. 2014), available at http://ssrn.com/abstract=2484377 [noted here].

Melton's and Hoffer's papers are not yet posted on SSRN.


Herbert Hovenkamp: Inventing the Classical Constitution
Michael Ramsey

Herbert Hovenkamp (University of Iowa - College of Law) has posted Inventing the Classical Constitution on SSRN. Here is the abstract: 

One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would make every participant a winner. The participants have liberty and property rights antecedent to the state, but choose to give up as little of these as needed to empower government. Because insisting on either unanimous consent or individual voter participation on every issue is impractical and unwise, republican representative government comes into existence. But then it is essential that this government act consistently with the social contract and not be captured by factions, or special interests. 

The result is constitutionalism that is wary of legislation as excessively vulnerable to special interest capture, suspicious of non-unanimous direct democracy tools such as initiatives and referenda because they often disrespect individual rights, and severely critical of most forms of economic regulation. With this distrust of legislation comes a reliance on judges to get the right answer, striking down statutes as unconstitutional even when the court's mandate is not explicitly stated in any constitutional language.

This article argues, first, that the Constitution was not classical in its inception. Historically it was "pre-classical," particularly on matters of private contract and property rights and government intervention in the economy. That conclusion is consistent with its text, but even clearer from contemporary perspective, as well as early court interpretation.

Second, a distinctively "classical" perspective on the Constitution came later, as the influence of Adam Smith's Wealth of Nations and his English and American followers filtered through American academies. The adoption of classical views resulted from the Jacksonian movement, which began in the 1820s. It took root in federal constitutional doctrine with Jackson's appointment of Chief Justice Roger B. Taney, an economic liberal. Classical liberal views increasingly influenced both state and federal constitutional thought well into the twentieth century, although state courts interpreting their own constitutions led the way. These included a strong antiregulatory bias favoring private markets, suspicion of monopoly, development of a technical and narrowly focused patent system as an exception to this hostility toward monopoly, legislative capture justifications for judicial review, and a strong view of liberty of contract. As these doctrines expanded, however, constitutional doctrine began to depart more significantly from constitutional texts.

Third, one defining element of classical political theory -- the "social contract" -- never captured an important following in American mainstream constitutional thought, not even during the early national period or the later heyday of constitutional classicism. While judges and constitutional writers sometimes spoke of a social "contract" or "compact," they almost always meant the text of a constitution or some other authoritative document. They rarely advocated for a social contract doctrine that would enable them to jump off the ratified text to some unnamed fundamental principle. Even the academic and judicial architects of economic substantive due process during the Gilded Age and Progressive Era did not typically rely on the social contract idea, and some of them forcefully rejected it.

Fourth, and concluding, the idea that classical constitutional doctrine was displaced by "progressive" constitutionalism is also wrong, or at least wildly exaggerated. The constitutional revolution that occurred during the first four decades of the twentieth century was certainly supported by self-identified "progressives." But support for change was broader and much more centrist, driven by changes in economic theory that today are accepted by liberals and conservatives alike. This makes it impossible to go back.


Jonah Gelbach on Isolated Textualism and the Halbig Litigation
Michael Ramsey

I've been mostly avoiding much comment on the Halbig (Affodable Care Act subsidies) litigation, on the ground that I don't intend to read the entire Affordable Care Act, but this post is too ill-conceived to pass up.

At Balkinization, Jonah Gelbach (U. Penn. Law School) guest-posts The Methodological Absurdity of Isolated Textualism: Halbig, King, and How Not To Read. His central point is that the plaintiffs' case in Halbig depends on "isolated textualism," that is, reading "one little bit at a time, with no consideration of the rest of the law."  This, Professor Gelbach says, is an approach "that is not just indefensible, but which, outside the particulars of the Halbig and King litigation, no one does defend."

Gelbach provides the following analogy:

To see why, let’s ask what would happen if we applied ... isolated textualism to the Internal Revenue Code generally, by considering how much tax would have been owed by a married couple filing jointly and having $17,000 in taxable income in 2013.

The opening sentence of the U.S. Internal Revenue Code, 26 U.S.C. 1(a), imposes a tax of 15% on the first $36,900 in “taxable income” of married couples who file joint tax returns. ... Using [the challengers'] approach to reading text—one little bit at a time, with no consideration of the rest of the law—the couple owes 15% of their taxable income, and that’s it. 
But that’s not the tax the IRS would have sought to collect. To understand why, all you have to do is what any law student taking Federal Income Taxation should learn on day one: keep reading. Subsequent parts of 26 U.S.C. 1 operate jointly to create an additional tax bracket that applies a tax of 10% of the first $17,850 of a married-filing-jointly couple’s taxable income (see this IRS page). Consequently, no one suggests the IRS is behaving unlawfully when it collects less than 15% in taxes from such couples. ...
Gelbach supposes this to be a knockdown argument (he has several other similar examples), but I am unpersuaded.  Of course, no textualist suggests that a single textual provision should be read without considering the rest of statutory text.  See Scalia & Garner, Reading Law, pp. 167-169 ("Whole-Text Canon").  And where (as in Gelbech's examples) there is a general rule followed by a direction to treat a specific instance separately, the specific direction is treated as an exception to the general rule (even if it is not expressly so stated).  Scalia & Garner, Reading Law, pp. 183-188 ("General-Specific Canon").
In Halbig, the plaintiffs claim that because the health care subsidies are available only on "an Exchange established by the State" they cannot be available on the exchange (healthcare.gov) established by the federal government.  Gelbech faults this argument for not reading the rest of the statute.  But Gelbach's complaint, and his tax code analogies, work only if there is something else in the text of the ACA that contradicts the language on which plaintiffs rely.
Maybe there is.  (I haven't read the statute and don't intend to).  But Gelbach in his post does not point to anything.  So I assume there isn't.  And if there isn't, his entire argument falls apart.  The plaintiffs' case doesn't depend on "isolated textualism"; it depends on the propositions that (a) one provision of the statute says that subsidies are only available on state exchanges, and (b) no other provision of the statute says otherwise.
That's not to say that the plaintiffs' position is necessarily correct, but I don't see the fundamental textualist flaw Gelbach claims to have uncovered.


Cass Sunstein: There Is Nothing that Interpretation Just Is
Michael Ramsey

Cass Sunstein (Harvard Law School) has posted There Is Nothing that Interpretation Just Is on SSRN. Here is the abstract: 

Some people believe that the very idea of interpretation requires judges to adopt a particular method for interpreting the Constitution. The problem with this view is that in constitutional law, the general idea of interpretation is compatible with a range of different approaches, and among them, none is mandatory, in the sense of having some unique or privileged connection with the general idea. Any particular approach must be defended on the ground that it would make our constitutional order better rather than worse. No one should doubt that there are legitimate questions about the institutional capacities of judges, and about the virtues and vices of a deferential role on their part; the answers to those questions can motivate a view about constitutional interpretation. But they do not depend on an understanding of what interpretation necessarily requires.

I sort of agree with this, and sort of don't.  It depends on what one means by "interpretation."

I would put it this way:

(1) When it was drafted and ratified, the Constitution had a meaning.  We can debate what the best way to find that meaning is (looking at text, looking at intent, etc.).  Perhaps it had more than one meaning, depending on how one defines "meaning."  But in any event, that meaning (or those meanings) became fixed at the time of ratification.

(2) Today, when judges decide what the constitutional rule is going to be, they can (a) try to find and apply the meaning at the time of ratification; or (b) do something else.  I agree with Sunstein that there is no nature of interpretation (no thing "that interpretation just is") compeling our choice.  And I further agree that "[a]ny particular approach [that is, any choice between (a) or (b)] must be defended on the ground that it would make our constitutional order better rather than worse."

(3) In considering this choice, I don't find it helpful at all to debate what interpretation is, or indeed even to use the word "interpretation."  The question, rather, is what judges (and other actors) ought to be doing when they decide the content of a constitutional rule.  To say they should be "interpreting" the Constitution provides no answer, because "interpreting" has contested meanings.  The useful way to think about it is whether they should be finding the original meaning, and if not, what else they should be doing.

(4) However, if judges are not finding the original meaning, they are changing the meaning from what it once was (or, recognizing that the meaning has been changed from what it once was).  That statement doesn't arise from the nature of interpretation; it arises from the nature of meaning.  As a result, they need an explanation for why they prefer the new meaning to the old meaning, and why they are authorized to make that change.

(I am especially influenced in my thinking here by two papers from the February 2014 Originalism Works-in-Progress conference by Larry Solum and Steve Sachs.)


The Drafters and the Ratifiers
Mike Rappaport

It is sometimes said that the ratifiers of the Constitution should count more in determining its original meaning than the drafters.  I am not so sure.

To begin with, this distinguishing between the drafters and the ratifiers appears to turn on an original intent (versus an original public meaning) understanding of originalism.  Under an original public meaning apprach, it is the meaning that a reasonable and knowledgeable person would give to the Constitution.  And that meaning is no more likely to be that of the ratifiers than the drafters.

But some people favor the original intent approach.  Yet, even under this approach, it is not clear that ratifiers matter more than the drafters.  The usual argument is that the drafters simply wrote the Constitution, but it had no authority until it was enacted into law, which only the ratifiers could do.

Let’s assume for a second that this argument is correct.  Even if it were true, it would not apply to constitutional amendments.   Constitutional amendments are enacted through a process that requires both proposing (that is drafting) and ratification.  There are two methods for proposing an amendment: one method has the Congress propose an amendment; another method has a convention do so.  There are also two methods for ratifying an amendment: one method has the state legislatures ratify an amendment; another method has state conventions do so.

Thus, the constitutional amendment process requires both proposing and ratification.  It is entirely unjustified to argue that the ratifiers count for more than the proposers.  It is true that the proposal would not count as law unless ratified.  But it is equally true that the ratifiers could not enact an amendment if it is not proposed in accordance with the constitutional amendment process (if, for example, a majority of both houses of Congress proposed the amendment rather than two thirds of both houses, as the Constitution requires).

Now, lets return to the original Constitution.  The original Constitution was enacted through a different process than amendments are.  The drafting convention in Philadelphia largely acted on its own authority, providing in the document that the ratification by 9 of the 13 states by state conventions would enact the Constitution for the ratifying states.  While the drafting convention did not have authority based on an existing constitution (as the drafting congress or convention does in the amendment process), it did govern the ratification process – the ratifying conventions it required and the 9/13 rule it established were both followed.  Thus, the original drafting convention was an essential part of the constitutional enactment process – both writing the proposed constitution and specifying the process.

The original drafting convention cannot be dismissed as not having a key role in the enactment process.  Yes, it is true that the draft of the Constitution was a mere proposal before it was ratified.  But the ratifiers were following the rules set by the proposal and were not in a position to take these actions without the proposal.  Thus, both the drafters and ratifiers were essential.

(Cross posted at the Liberty Law Blog)

Judge Katzmann Takes on Justice Scalia
Michael Ramsey

Judge Robert Katzmann (U.S. Court of Appeals, Second Circuit) has a new book Judging Statutes (Oxford Univ. Press 2014).  From the publisher's description: 

  • Major but concise work by a distinguished federal judge--and the only one with a Ph.D. in political science--on a highly contested issue
  • Offers a powerful challenge to Antonin Scalia's textualist approach
  • A spirited and compelling defense of why judges must look at the legislative record behind a law--and not merely the statute itself
  • Of interest to concerned citizens, law students, government students, lawyers, judges, and legislators

I am not convinced that a textualist approach requires the strict blindness to legislative history on which Justice Scalia insists -- although it surely requires that that the legislative history be used for the purpose of finding the text's meaning, not for contradicting it.  More notably, though, this appears to be a debate within a methodology of (statutory) originalism.  Why look at the "legislative record" unless you are interested in what the enactors meant to accomplish?  As noted here previously, originalism isn't controversial when we are talking about statutes.

(Via How Appealing).


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

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

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

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

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

(Thanks to Seth Barrett Tillman for the pointer).


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

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

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

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

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


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

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

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

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

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

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

Here's my quick assessment from an originalist perspective:

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

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

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

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

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

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


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

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

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


More from Ilya Somin on Elitism and Populism
Michael Ramsey

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

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

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

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

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

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


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

At Concurring Opinions, Gerard Magliocca: Halbig and Originalism

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

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

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

Professor Magliocca has further thoughts in response here.

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

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

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

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

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

But I say no.


Justice Scalia and United States v. Sprague
Michael Ramsey

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

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

Here is the key passage from Heller:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Justice Scalia, Ordinary Meanings, and Legal Meanings
Mike Rappaport

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

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

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

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

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

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

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

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

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

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

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

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

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

(Cross posted at the Liberty Law Blog)

Mark Graber: Constructing Constitutional Politics
Michael Ramsey

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

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


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

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

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

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

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

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

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

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

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