My Reactions to King v. Burwell
Mike Rappaport

I am a strong opponent of Obamacare.  But once I realized that a decision in King v. Burwell denying subsidies to people who purchase insurance under the federal exchanges would not help the cause of repealing Obamacare and might hurt it, my attitude towards the case changed.  I felt much less politically invested in the issue and could more easily view it in an impartial manner.

Thus, I read with a relatively open mind the opinions by Chief Justice Roberts and Justice Scalia in the case.  Although I am a formalist (albeit a soft formalist), I do believe that conflicting provisions in a statute can render it ambiguous and that purpose is permissibly used to resolve an ambiguity – two key premises of Chief Justice Roberts’s opinion.  But in the end, I concluded that Justice Scalia had the better of the argument by a significant margin. 

In my view, Justice Scalia effectively rebutted the claim that the Affordable Care Act contained contradictory provisions.  The provisions limiting subsidies to exchanges established by the state were clear.  The other provisions emphasized by Roberts that appeared to contemplate subsidies in federal exchanges could be reconciled with the “established by the state” provision.  The drafting was hardly exemplary, but there was no clear contradiction, especially when one considered the important canon that one should try to reconcile two apparently contradictory provisions.

Since there was no contradiction, one would only depart from the clear statutory language if there was an absurdity.  For those who are less formalistic, one might find Roberts’s meaning of the statute if there was a much stronger evidence of purpose for that interpretation than for Scalia’s.  But neither standard justifies Robert’s decision.

Roberts claims that the purpose of preventing adverse selection (“death spirals”) justifies providing subsidies on federal exchanges, but as Scalia points out there is another plausible purpose – providing states with an incentive to establish exchanges.  And Congress in at least one other place actually prohibited charging applicants for insurance more based on their health condition under conditions similar to those that would govern insureds under federal exchanges.  Thus, Congress cannot be seen as eschewing such a result.

I have been debating some of my colleagues about this opinion, and their main argument is that Congress would not have wanted to allow “death spirals” merely to provide the states with an incentive.  But I don’t know how they know this.  Certainly, Jonathan Gruber didn’t think this.  Given that my colleagues support subsidies on federal exchanges, it is awfully convenient that they find this purpose argument compelling, which is the basic problem with modern versions of purposivism (as opposed to the narrower version that Hart & Sachs advocated in the Legal Process).

But it seems to me that there is an even stronger argument against their view.  Under the ACA, Congress provided that if a state chose not to accept the New Medicaid program (which vastly expanded the old Medicaid program), the state would lose all of its federal Medicaid funding.  That would have had enormous consequences for the poor people of that state.  Yet, Congress allowed that to happen, because it wanted the state to choose the New Medicaid program.  If Congress allowed that choice under the ACA, I do not know why one would doubt it would also allow the similar choice at issue in King.

(Cross posted at the Liberty Law Blog)

The Chief Justice's Dissent in the Arizona Legislature Case
Michael Ramsey

Chief Justice Roberts has been the target of much criticism for his majority opinion in King v. Burwell, but I think we should instead be celebrating his outstanding originalist dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission (arguing that "Legislature" means, well, the legislature.)  As he puts it:

The relevant question in this case is how to define “the Legislature” under the Elections Clause. The majority opinion does not seriously turn to that question until page 24, and even then it fails to provide a coherent answer. The Court seems to conclude, based largely on its understanding of the “history and purpose” of the Elections Clause, ante, at 24, that “the Legislature” encompasses any entity in a State that exercises legislative power. That circular definition lacks any basis in the text of the Constitution or any other relevant legal source.

Robert's affirmative case begins with dictionaries: 

The majority’s textual analysis consists, in its entirety, of one paragraph citing founding era dictionaries. The majority points to various dictionaries that follow Samuel Johnson’s definition of “legislature” as the “power that makes laws.” Ibid. (internal quotation marks omitted). The notion that this definition corresponds to the entire population of a State is strained to begin with, and largely discredited by the majority’s own admission that “[d]irect lawmaking by the people was virtually unknown when the Constitution of 1787 was drafted.” Ante, at 3 (internal quotation marks omitted); see ante, at 27. Moreover, Dr. Johnson’s first example of the usage of “legislature” is this: “Without the concurrent consent of all three parts of the legislature, no law is or can be made.” 2 A Dictionary of the English Language (1st ed. 1755) (emphasis deleted). Johnson borrowed that sentence from Matthew Hale, who defined the “Three Parts of the Legislature” of England as the King and the two houses of Parliament. History of the Common Law of England 2 (1713). (The contrary notion that the people as a whole make the laws would have cost you your head in England in 1713.) Thus, even under the majority’s preferred definition, “the Legislature” referred to an institutional body of representatives, not the people at large.

Then he looks at other founding-era sources: 

Any ambiguity about the meaning of “the Legislature” is removed by other founding era sources. “[E]very state constitution from the Founding Era that used the term legislature defined it as a distinct multimember entity comprised of representatives.” Morley, The Intratextual Independent “Legislature” and the Elections Clause, 109 Nw. U. L. Rev. Online 131, 147, and n. 101 (2015) (citing eleven State Constitutions). The Federalist Papers are replete with references to “legislatures” that can only be understood as referring to representative institutions. E.g., The Federalist No. 27, pp. 174–175 (C. Rossiter ed. 1961) (A. Hamilton) (describing “the State legislatures” as “select bodies of men”); id., No. 60, at 368 (contrasting “the State legislatures” with “the people”). Noah Webster’s heralded American Dictionary of the English Language defines “legislature” as “[t]he body of men in a state or kingdom, invested with power to make and repeal laws.” 2 An American Dictionary of the English Language (1828). It continues, “The legislatures of most of the states in America . . . consist of two houses or branches.” Ibid. (emphasis deleted).

He next turns to other uses of "Legislature" in the Constitution:

The unambiguous meaning of “the Legislature” in the Elections Clause as a representative body is confirmed by other provisions of the Constitution that use the same term in the same way. When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself. Our precedents new and old have employed this structural method of interpretation to read the Constitution in the manner it was drafted and ratified—as a unified, coherent whole. See, e.g., NLRB v. Noel Canning, 573 U. S. ___, ___–___ (2014) (slip op., at 19–20); id., at ___ (SCALIA, J., concurring in judgment) (slip op., at 32); McCulloch v. Maryland, 4 Wheat. 316, 414–415 (1819); Martin v. Hunter’s Lessee, 1 Wheat. 304, 328–330 (1816); Amar, Intratextualism, 112 Harv. L. Rev. 747 (1999). The Constitution includes seventeen provisions referring to a State’s “Legislature.” See Appendix, infra. [Ed.:  Yes, he includes an appendix listing every use of "Legislature" in the Constitution.] Every one of those references is consistent with the understanding of a legislature as a representative body. More importantly, many of them are only consistent with an institutional legislature—and flatly incompatible with the majority’s reading of “the Legislature” to refer to the people as a whole.

And some drafting history: 

The history of the Elections Clause further supports the conclusion that “the Legislature” is a representative body. The first known draft of the Clause to appear at the Constitutional Convention provided that “Each state shall prescribe the time and manner of holding elections.” Debates on the Federal Constitution 146 (J. Elliot ed. 1836). After revision by the Committee of Detail, the Clause included the important limitation at issue here: “The times and places, and the manner, of holding the elections of the members of each house, shall be prescribed by the legislature of each state; but their provisions concerning them may, at any time, be altered by the legislature of the United States.” Id., at 225 (emphasis added). The insertion of “the legislature” indicates that the Framers thought carefully about which entity within the State was to perform congressional districting. And the parallel between “the legislature of each state” and “the legislature of the United States” further suggests that they meant “the legislature” as a representative body.

As the majority explains, the debate over the ratification of the Elections Clause centered on its second part, which empowers Congress to “make or alter” regulations prescribed by “the Legislature” of a State. See ante, at 25–27. Importantly for our purposes, however, both sides in this debate “recognized the distinction between the state legislature and the people themselves.” Brown v. Secretary of State of Florida, 668 F. 3d 1271, 1275–1276, n. 4 (CA11 2012).  ... [going on to discuss specific evidence, with a cite to originalist scholar Rob Natelson].

And finally, he rejects the majority's appeal to purpose:

The majority contends that its counterintuitive reading of “the Legislature” is necessary to advance the “animating principle” of popular sovereignty. Ante, at 24. But the ratification of the Constitution was the ultimate act of popular sovereignty, and the people who ratified the Elections Clause did so knowing that it assigned authority to “the Legislature” as a representative body. The Elections Clause was not, as the majority suggests, an all-purpose “safeguard against manipulation of electoral rules by politicians.” Ante, at 26. Like most provisions of the Constitution, the Elections Clause reflected a compromise—a pragmatic recognition that the grand project of forging a Union required everyone to accept some things they did not like. See The Federalist No. 59, at 364 (describing the power allocated to state legislatures as “an evil which could not have been avoided”). This Court has no power to upset such a compromise simply because we now think that it should have been struck differently. ...

This is a strong an orignialist/textualist opinion as anyone should hope for or expect from any Justice.  (And Justice Scalia liked it so much he joined it even though he thought the legislature didn't have standing and so the Court shouldn't be deciding the case in the first place).

Of course, it's a dissent.  So as in the recess appointments case, the question is: should we view this as disappointing, because the textualist/originalist position got "only" four votes, or encouraging, because it got as many as four (!) votes?

(I prefer the latter, because I remember when the orignialist/textualist view would get one vote.)

In any event, the Chief Justice is likely to be on the Court for a long time, and if conservative commentators were thinking for the long term it would seem more constructive to celebrate this fine opinion than to complain about King v. Burwell.

RELATED: In the New York Times, Jeffrey Rosen: John Roberts, The Umpire in Chief.  From the conclusion:

It’s understandable that liberals and conservatives are disappointed with the chief justice for rejecting positions they deeply favor. But Chief Justice Roberts’s relatively consistent embrace of judicial deference to democratic decisions supports his statement during his confirmation hearings that judges should be like umpires calling “balls and strikes.” As he put it then: “Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Although the chief justice’s statement was subsequently mocked, both the Affordable Care Act cases and the marriage equality case show that he meant what he said. Whether writing for the majority or in dissent, he believes that judges should set aside their policy views and generally uphold laws unless they clash with clear prohibitions in the Constitution. In the long term, if he continues to pursue this conception of the deferential role of the court, he may help liberals and conservatives more readily accept their Supreme Court defeats.

Agreed, but the Arizona Legislature case -- and the many others Rosen notes where Roberts has invalidated laws or executive actions -- show that the Chief has a fairly robust view of the "clear prohibitions in the Constitution," based in significant part on an originalist/textualist approach.


A bit more on Obergefell's immutability claim
Chris Green

I didn't have time on Friday to put links into my SCOTUSblog piece given the "ASAP" deadline, but here is the American Psychological Association's brief on which Kennedy's opinion relies. Surveying the rest of the briefing turns up quite a lot of other material on the immutability issue--see herehere, here, and here for some of the briefs surveying scientific literature, here for anecdotal accounts to consider alongside the Court's use of the plaintiffs' personal histories, and here at 15-16 for a brief making the same point about the APA-cited Herek survey that I made in my essay--i.e., that it actually contradicts a claim of general immutability. 

The Court's cavalier approach to the relevant facts in Obergefell would have trouble, I think, passing muster under administrative-law standards like Overton Park (requiring "adequate explanation"), State Farm (agency must "examine the relevant data and articulate a satisfactory explanation for its action"), Fox ("a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy"), or this morning's Michigan v. EPA ("reasoned decisionmaking").  In another case this morning (the execution-protocol case, Glossip) the Court reiterated that "federal courts should not embroil themselves in ongoing scientific controversies beyond their expertise." That general principle would have served the Court well last week. For much more on the relevance of standards of knowledge to judicial review, of course, see here.

Randy Barnett: Appoint More Originalists to the Court
Michael Ramsey

Reflecting on last week's decisions, Randy Barnett (guest blogging at Instapundit) says for future appointments:

The key is a demonstrated commitment to following the original meaning of the Constitution, whether that leads to upholding or invalidating a “popularly-enacted” law. Avoid those who advocate “judicial deference,” “judicial restraint,” “judicial minimalism” or who condemn “judicial activism” or “legislating from the bench.” None of those catch phrases concern how to interpret the Constitution, and those who utter these largely empty homilies about judicial role are very likely to disappoint.

More from Professor Barnett here (rejecting Jeb Bush's call  for Justices committed to judicial restraint).

I agree, if the conservative concern with last week's decisions is that they don't reflect the rule of law.  As I've argued, originalism is a way (in my view about the only way) to have a rule of law as opposed to a rule of judges.  (To be sure, it does not guarantee a rule of law, for several reasons, but it offers the possibility of the rule of law).  And of course, done right it does not guarantee conservative results.

UPDATE:  Further thoughts from Professor Barnett: Constraint vs. Deference: Two possible meanings of ‘judicial restraint’.

But what does “judicial restraint” mean?  There are two quite different possibilities:

    1. Constraint: “Judicial restraint” could refer to confining oneself to following the meaning of the text of the Constitution (and of statutes) — by which is meant its original meaning — whether this leads to upholding or invalidating properly enacted statutes; or
    2. Deference: “Judicial restraint” could refer to deferring to the will of the majority as reflected in the acts of the more “democratic” branches — i.e. “unelected unaccountable” judges should avoid wherever possible thwarting the will of the people, by which is meant the political preferences of the majority of the electorate. The emphasis here is not on the correctness of constitutional analysis, but on judicial deference to majority will.

What is of utmost importance is that these are not the same thing.

And in conclusion:

In short, because of both the ambiguity of “judicial restraint” and its historical association with deference to legislative majorities, demanding “a proven record of judicial restraint” is very likely to lead to judges who disappoint conservatives and libertarians. Republicans should not be fooled again. And the only way to avoid being fooled again is to demand judges with a proven commitment to the original meaning of the text — by which I mean the whole text, not just the parts that lead to the results they like.

My further thoughts: The problem with judicial restraint (meaning simply deference to legislative majorities) as an interpretive philosophy is that it isn't an interpretive philosophy.  No one (except those who don't believe in judicial review at all -- and they are unlikely to be appointed to the Supreme Court) thinks the Court should always defer.  Rather, they think the Court should mostly defer, unless something points strongly the other way.  But what is that "something"?  Unless "judicial restraint" judges have some interpretive philosophy (such as originalism) informing their decisions, nothing tells them what can overcome the principle of restraint.  So, most likely, they will abandon restraint when intuitively there seems a moral imperative to do so -- that is, in the most important cases.  So paradoxically the advocate of restraint becomes unrestrained when it matters most.

To be clear, I'm not saying this always happens, just that it's a risk.  And there are very good restrained originalist judges, such as the Sixth Circuit's Jeffrey Sutton (who deferred in both the first ACA case and in the same-sex marriage case).  But I'm skeptical of an approach that says, I'll be restrained except when I think it's really important not to be.  And I think that's the way a lot of judges look at it.


Edward Purcell: Democracy, the Constitution, and Legal Positivism in America
Michael Ramsey

Edward A. Purcell Jr. (New York Law School) has posted Democracy, the Constitution, and Legal Positivism in America: Lessons from a Winding and Troubled History (Florida Law Review, Vol. 66, No. 4, 2014) on SSRN.  Here is the abstract:     

This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist ideas that existed in early American constitutionalism, it focuses on the impact of John Austin’s theory of legal positivism in the United States after the Civil War and the way successive generations of Americans interpreted positivist ideas to develop their theories of democracy and constitutionalism. It argues that Austin inspired rival jurisprudential approaches that quickly, but misleadingly, became entangled with opposing theories of democracy and constitutionalism. Positivist ideas subsequently became the instrument first of Progressives who criticized the “Lochner Court,” then of New Deal justices who preached “judicial restraint,” then of many critics of the Warren Court, and finally of the conservative originalists in the present day who broadly condemn “liberal judicial activism.” The Article shows that, as American politics changed over the years, so too did the alleged significance and practical uses of positivism for arguments about both democracy and constitutionalism. The Article concludes that positivism contributed — and is able to contribute — little to coherent normative theories of either democracy or constitutionalism but that it nonetheless has substantial practical value for both. Positivism’s emphasis on the social and behavioral realities that underlie the law highlights the need to constantly examine the extent to which the legal system honors a society’s democratic values and constitutional principles not just in words and slogans but in the actual operations and social consequences of its legal system.

Via Larry Solum at Legal Theory Blog, who comments

Highly recommended, but readers should be warned that Purcell's understanding of positivism is historical and practical and not conceptual or contemporary.  His understanding of the association between originalism and positivism simply does not hold for contemporary versions of legal positivism--which understands all law as "positive" in the sense that it is necessarily the case that legal content is determined by social facts, not moral facts.  Thus, even the most extreme forms of living constitutionalism (for example, a form that embraced the proposition that the Supreme Court may adopt amending constructions of the constitutional text) do not (and cannot) involve anything other than positive law, albeit law that is made by the Supreme Court.


Shoba Sivaprasad Wadhia: The History of Prosecutorial Discretion in Immigration Law
Michael Ramsey

Shoba Sivaprasad Wadhia (Penn State Law) has posted The History of Prosecutorial Discretion in Immigration Law (American University Law Review, Vol. 64, 2015) on SSRN.  Here is the abstract:

This Article describes the historical role of prosecutorial discretion in immigration law and connects this history to select executive actions announced by President Obama on November 20, 2014.


"Oh, well, we know better."
Chris Green

My contribution to the SCOTUSblog symposium on Obergefell is now posted, with a title from Justice Kennedy's comment at oral argument. Most of the content will probably surprise few readers of this blog, but I do work in references to Toy Story 2 and Apocalypse Now, leaving Pride & Prejudice on the cutting room floor.

Statutory Originalism in King v. Burwell
Michael Ramsey

Without getting into the merits of the majority opinion in King v. Burwell, I just want to note that methodologically it is both textualist and originalist.  The key sections are Parts II.A. and B.  In Part II.A., the majority looks closely at various textual provisions which (it says) raise doubt about whether the key phrase "an exchange established by a state" really means what it appears to mean.  Then, after concluding (mainly on the basis of the text) that the key phrase is ambiguous, Part II.B turns to the majority's understanding of the intent of the enacting Congress in order to resolve the ambiguity.

Here is some of the key language:

Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. See New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 419–420 (1973) (“We cannot interpret federal statutes to negate their own stated purposes.”).

As discussed above, Congress based the Affordable Care Act on three major reforms: first, the guaranteed issue and community rating requirements; second, a requirement that individuals maintain health insurance coverage or make a payment to the IRS; and third, the tax credits for individuals with household incomes between 100 percent and 400 percent of the federal poverty line. In a State that establishes its own Exchange, these three reforms work together to expand insurance coverage. …

Under petitioners’ reading, however, the Act would operate quite differently in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms—the tax credits—would not apply. And a second major reform—the coverage requirement—would not apply in a meaningful way. …

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well.

This is originalism: it is looking at the intent of the enactors to reach a conclusion about the original meaning of the enactment.  (Whether it is persuasive originalism I leave for another day).


Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System
Mike Rappaport

In my last post, I noted that the advocates of departmentalism do not rely on pre-constitutional practice to found their view.  Instead, they tend to argue that the Constitution adopted a new system, one in which each of the branches is equally entitled to interpret the Constitution.

The problem with this argument is that it lacks support.  The Constitution both relied upon the preexisting English and state systems as well as establishing some innovations.  The question for departmentalists is to show that the Constitution actually adopted departmentalism.

Here is what I regard as the basic textual problem with arguing that the new system established departmentalism: the Constitution typically used terms that had their historical or common law meanings.  Thus, when the Constitution used the term “judicial power” or “executive power” it typically meant those terms to have their traditional meanings.

That does not mean that the Constitution retained the entire traditional system.  It clearly established a new system in certain ways, but it did so by changing the rules governing these entities, not by using the traditional terms in a new way.

Let me provide an example.  The Constitution diminished the powers of the President from those of the King.  But it did not do this simply assuming that the term “executive power” would have a new meaning.  Instead, it vested the executive power in the President, but then took away or constrained various powers that the King had.  So it gave the Congress the King’s power to declare war.  And it constrained the King’s unilateral power to make executive appointments by giving the President the power to appoint officers only with the consent of the Senate.  It did these things expressly rather than by assuming that readers would understand that the system had been changed.

Thus, if departmentalism were to be adopted by the Constitution, it would occur through provisions in the Constitution that would adopt it.  But I am not aware of any such provisions.

That the Constitution is the supreme law of the land and that each branch is required to follow it do not do the trick.  That the Constitution is the supreme law does not prevent courts from the obligation to follow judicial precedent if, as I have argued, precedent is either required by the Constitution or if the Constitution treats it as a matter of federal common law.  Similarly, that the Constitution requires each branch to follow it does not prevent the other branches from also having to follow judicial precedent if, as I have suggested might be true, such an obligation is either required by the Constitution or it the Constitution treats it as a matter of federal common law.

(Cross posted at the Liberty Law Blog)

Originalism and Sons of Confederate Veterans
Michael Ramsey

Candid originalists acknowledge that originalism can't give a clear answer to every case.  One that seems especially difficult: last week's Supreme Court decision in Walker v. Sons of Confederate Veterans.  The question is whether Texas can offer its citizens the opportunity (for a fee) to design their own license plates, but reserve the ability to veto designs it finds offensive (in this case, a design incorporating the confederate flag).  Justice Breyer's answer ("yes," for a 5-4 Court) has come in for some sharp criticism from across the political spectrum -- see here from Josh Blackman ["not only wrong, but dangerous"]; here from Michael Dorf ["so badly reasoned that it cannot be taken seriously"]; here from Ed Whelan ["Justice Alito's dissent strikes me as devastating"]; here from Calvin Massey ["The Court got it badly wrong."]).

I doubt originalism has anything useful to say on this issue.  Textually, the question is whether this restriction "abridg[es] the freedom of speech."  But how to assess that?  I can't think of any practice in the eighteenth or nineteenth century that's reasonably analogous.  That being so, I can't see how to answer the textual question.  We can't make any progress without knowing whether analogous practices were understood to violate the freedom of speech.  The question (from an originalist standpoint) isn't whether the practice abridges the freedom of speech in the abstract, but whether it abridges the eighteenth/nineteenth century meaning of freedom of speech.  And if there's no analogous historical practice, there's no way to assess that question.

A couple of options are then available.  We could say that this is a situation in which the original meaning "runs out" and leaves us in the "construction zone" where (apparently) judges create their own answers.  (And if that's the case, I'm not sure on what basis we can criticize judges for picking one result where we would have picked another).

Or we could impose a default rule.  For example, we could say (as I assume John McGinnis would say) that since the government action is not clearly contrary to a constitutional rule, it should be upheld.  But also, perhaps we could say that, since the First Amendment protects speech and the Texas rule appears to limit speech, the Texas rule should be invalid unless Texas can show it's allowed by the Constitution's original meaning (which Texas can't).  Thus we would face the question of how to pick among default rules.

John McGinnis would further say, I think, that originalism provides the default rule, because the presumption of constitutionality was part of the way people understood the courts' judicial power at the time.  Perhaps that's right, but it depends on proof of a common understanding that may not be possible.  And if the common understanding on this point is ambiguous or not fully developed, then what?  We would need a default rule for picking the default rule.

I don't think any of this amounts to an argument against originalism.  A common argument against originalism is that it can't give a clear answer to every question.  The response is, of course it can't.  That's not an argument against using originalism where it does give an answer.  But I'm inclined to think Walker is a case where it doesn't (and one may as well admit it).


Paying Ransoms and Presidential Enforcement Discretion
Michael Ramsey

According to CNN

The payment of ransoms to terror groups like ISIS and al Qaeda has long been tolerated, though it is technically illegal. The administration has looked the other way when families of Americans held overseas have paid ransoms.

On Wednesday, the White House will explicitly indicate that families should not fear criminal prosecution if they choose to make ransom payments. The new directive will not include a formal change to existing laws. But administration officials will state publicly, for the first time, that ransom payments will be tolerated.

This strikes me as a much better test of executive enforcement discretion than the immigration non-enforcement debate, as it's not complicated by arguable changes in legal status, conferral of benefits, etc.  As I understand it, there's a law against aiding terrorists, which is violated by (among other things) paying ransoms to terrorists; the President is now declaring categorically that as to a specified class (families of hostages paying ransoms) the law will not be enforced, I assume principally for policy reasons.  As the CNN story notes "[t]he new directive will not include a formal change to existing laws" [well, that's a relief], but the families will be assured (in a non-binding way) of non-prosecution.

Is this within the President's constitutional power?  Some of the arguments raised in the immigration non-enforcement debate seem to suggest it is: it declares (a) in advance (b) a specified category of non-enforcement, (c) mainly for policy reasons.  If the immigration non-enforcement policy is unconstitutional for these reasons, the ransom non-enforcement policy should be as well.

But I think the hostage non-enforcement policy is within the President's power.  He is not dispensing with an entire law, but only mitigating the harsh and possibly unintended effect of a law in a particular set of circumstances.  He can argue that he is "faithfully execut[ing]" the law because (in his view) Congress would not want it enforced against this group (if Congress had thought about it).  And more fundamentally this is part of the check the executive power provides on the power of Congress.  

As Madison quoted Montesquieu in Federalist 47, "When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner."  That is, separating the enactment and the execution preserves liberty because (among other things) the body with execution power can mitigate unjust laws.  But this check works only if the executive authority has an independent power to assess the justness of a law as applied to particular circumstances.  And I see no reason why this check can't be applied in advance by an announced policy as to a designated class.

So in this case, I would argue, if the President concludes it's unjust to enforce laws prohibiting support of terrorism against families negotiating for the return of their loved ones, then that is part of the Madisonian/Montesquieu-ian liberty-protecting separation of powers.

(On the merits, I think allowing ransom to be paid to terrorists is a terrible idea, but that's not the point).


Richard Re on the Article VI Oath
Chris Green

Richard M. Re (University of California, Los Angeles (UCLA) - School of Law) has posted Promising the Constitution, 110 Nw. U. L. Rev. __ (2016) on SSRN. The abstract:

The Constitution requires that all legislators, judges, and executive officers swear or affirm their fidelity to it. The resulting practice, often called “the oath,” has had a pervasive but underappreciated role in constitutional law. For example, the Supreme Court has variously cited the oath as a reason to invalidate statutes, or sustain them; to respect state courts, or override them; and to follow precedents, or overrule them. Meanwhile, commentators contend that the oath demands particular interpretive methods, such as originalism, or particular distributions of interpretive authority, such as departmentalism. 

This Article provides a new, philosophically grounded framework for understanding the oath, its moral content, and its implications for legal practice. In particular, the Article argues that the oath engenders a promise and so gives rise to personal moral obligations. Further, the content of each oath, like the content of everyday promises, is linked to its meaning at the time it is made. The oath accordingly provides a normative basis for officials to adhere to interpretive methods and substantive principles that are contemporaneously associated with “the Constitution.” So understood, the oath can help solve the “dead hand problem” by explaining how the people can legitimately bind their elected representatives: with each vote cast, the people today choose to be governed by oathbound officials tomorrow. On this view, constitutional duty flows from a rolling series of promises undertaken by individual officials at different times. As old officials give way to new ones, the overall constitutional order gradually evolves, with each official bound to a distinctive promise from the recent past. This process of gradual change is normally invisible because the oath also incorporates publicly recognized rules for legal change, or “change rules,” such as the Article V amendment process. As a result, the timing of an official’s oath becomes morally relevant only when a legal change has not complied with previously recognized change rules, such as in the case of a revolution. Finally, because promises, even constitutional promises, should sometimes be broken, the oath can illuminate the bounds of constitutional duty, including the role of stare decisis, and shed light on instances when the Constitution itself should be set aside.

Larry Solum at the Legal Theory Blog comments--and I quite agree--"Highly recommended. Download it while its hot!" Some quibbles, though, after the jump.

Continue reading "Richard Re on the Article VI Oath
Chris Green" »

Originalism in the Raisins Case
Michael Ramsey

A strong originalist rejection of the proposition that the takings clause protects only real property, not personal property (from Chief Justice Roberts' opinion for the Court yesterday in Horne v. Department of Agriculture):

The Takings Clause provides: “[N]or shall private property be taken for public use, without just compensation.” U. S. Const., Amdt. 5. It protects “private property” without any distinction between different types. The principle reflected in the Clause goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings. Clause 28 of that charter forbade any “constable or other bailiff” from taking “corn or other provisions from any one without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller.” Cl. 28 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 329 (2d ed. 1914).

The colonists brought the principles of Magna Carta with them to the New World, including that charter’s protection against uncompensated takings of personal property. In 1641, for example, Massachusetts adopted its Body of Liberties, prohibiting “mans Cattel or goods of what kinde soever” from being “pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.” Massachusetts Body of Liberties ¶8, in R. Perry, Sources of Our Liberties 149 (1978). Virginia allowed the seizure of surplus “live stock, or beef, pork, or bacon” for the military, but only upon “paying or tendering to the owner the price so estimated by the appraisers.” 1777 Va. Acts ch. XII. And South Carolina authorized the seizure of “necessaries” for public use, but provided that “said articles so seized shall be paid for agreeable to the prices such and the like articles sold for on the ninth day of October last.” 1779 S. C. Acts §4.

Given that background, it is not surprising that early Americans bridled at appropriations of their personal property during the Revolutionary War, at the hands of both sides. John Jay, for example, complained to the New York Legislature about military impressment by the Continental Army of “Horses, Teems, and Carriages,” and voiced his fear that such action by the “little Officers” of the Quartermasters Department might extend to “Blankets, Shoes, and many other articles.” A Hint to the Legislature of the State of New York (1778), in John Jay, The Making of a Revolutionary 461–463 (R. Morris ed. 1975) (emphasis deleted). The legislature took the “hint,” passing a law that, among other things, provided for compensation for the impressment of horses and carriages. 1778 N. Y. Laws ch. 29. According to the author of the first treatise on the Constitution, St. George Tucker, the Takings Clause was “probably” adopted in response to “the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practised during the revolutionary war, without any compensation whatever.” 1 Blackstone’s Commentaries, Editor’s App. 305–306 (1803).

(And congratulations to the Horne's counsel, Stanford Law Professor Michael McConnell).

UPDATE:  Josh Blackman pummels Justice Sotomayor's dissent.


Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History
Mike Rappaport

In my previous post, I noted that any obligation of the executive and Congress to follow court precedents – either a strong judicial supremacy or a milder obligation to follow a series of court decisions – would have its source in either an interpretation of the Constitution’s judicial power or federal common law.  But that reading of the Constitution or the common law would require evidence that judicial precedents were seen as imposing such an obligation.

What then might that evidence be?  One possible source of evidence are statements made by various framers at the Philadelphia and Ratification Conventions that Randy Barnett has recently blogged about.  For example, he notes that James Wilson said:

If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.

One might read Wilson as stating that a judicial decision declares an unconstitutional law “null and void” and therefore the executive is obligated not to enforce it.  But Wilson need not be read that way.  As Ed Whelan notes, this statement might be understood instead as stating that the executive will as a practical matter not be able to enforce laws that the courts are unwilling to apply in adjudications.What I find more persuasive is that there is very little, if any, evidence of departmentalism at the time of the Constitution.  I have not systematically investigated the law prior to the Constitution, but Joseph Story in his Commentaries claims that English law understood judicial decisions as determining the meaning of the laws.  I am not aware of anyone who has provided evidence disputing this claim.  Nor am I am aware of any contrary examples until at least the Jefferson Administration.  If these examples emerged in 1800 – and there was an earlier contrary practice – then these new examples can hardly be the original meaning.  And of course Jefferson had strong political reasons – a federalist judiciary – to invent a new justification.  Most significantly, apart from examples of nonenforcement, I am not aware of a practice of nonenforcement that has been followed during any presidency.

Of course, if the history differs from this account, that would be very important and one would want to take that into serious consideration.  But I am not aware of anyone claiming something to the contrary.

Ed Whelan does provide an apparently contrary statement from James Madison, who states “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.”  Whelan argues “and what is the claim of judicial supremacy but a claim that the judiciary has a “superior right” to settle the boundaries governing the executive and legislative branches?”

While Madison’s quote could be interpreted as Whelan does, that is not the only interpretation.  Madison does not specifically say that the executive can ignore judicial precedents when enforcing the law.  Instead, Madison might just mean that each branch has various powers that it can use to police the boundaries of the other branch’s powers without settling the matter.  For example, a court might decide a case and then the legislature might impeach the judges for that decision.  Neither the judicial decision nor the impeachment might settle the matter.  And the norm of judicial supremacy might not extend to impeachment.

Of course, advocates of departmentalism sometimes argue that there is no principled reason why the legislature can ignore the bindingness of the judicial decision when engaging in impeachment but not in other circumstances, such as enforcement of the laws.  But that is a mistake.  The issue is not one of logical or principled distinctions.  The question is what were the norms in 1789 and it is quite likely that the legislature was not bound by the judicial precedents when making impeachment decisions.  The whole point of judicial impeachment is to check the judges.

(Cross posted at the Liberty Law Blog)

More on Originalism and Liberty
Michael Ramsey

At Liberty Law Forum, two additional responses to Ilya Somin's essay How Constitutional Originalism Promotes Liberty:

Hadley Arkes: What “Liberties” Does the Constitution Protect?

Peter Lawler: Originalism and Legislative Deliberation

Here is Professor Lawler's conclusion:

Liberty, in truth, has to be understood, even under the law, as more than the negative liberty of isolated individuals. For liberty to be sustainable, we need some shared understanding of what our freedom from political domination is for. If Americans have reasonably competing views of what marriage (or abortion) is, and if neither the Framers of 1787 nor the authors of the Fourteenth Amendment had any thought at all about making same-sex marriage (or the pro-choice position on abortion) a constitutional requirement, then liberty is best protected by legislative deliberation and compromising accommodation.

All in all, it’s fine for Somin to write to maximize his personal preference, but we have no reason to trust him that our Constitution means simply what he says he does. He should have a respected place (thanks to our Framers’ true intentions) in our complicated process of political deliberation, in which the Constitution is never simply what the Court at any particular moment says it is.


Michael Kagan: Do Immigrants Have Freedom of Speech?
Michael Ramsey

Michael Kagan  (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Do Immigrants Have Freedom of Speech? (California Law Review Circuit, 2015, forthcoming) on SSRN.  Here is the abstract: 

 The Department of Justice recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. If the DOJ argument is right, then most of the 11 million unauthorized immigrants in the U.S. could be censored or punished for speaking their minds – as many of them have in support of comprehensive immigration reform and the Dream Act. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected by the First Amendment. Moreover, it argues that for reasons that have not been widely appreciated, Citizens United v. FEC offers significant doctrinal support for immigrant speech rights, because it articulates a strong rule against speech discrimination based on identity rather than content.

Via Larry Solum at Legal Theory Blog, who comments: 

Interesting.  From an originalist perspective, it seems clear that "incorporation" of the freedom of speech would have to be justified on the basis of the privileges or immunities clause of the 14th, which protects only citizens.  But there is no similar limitation on the First Amendment itself.  But from the point of view of a public meaning originalist, it seems difficult to conceive of an argument that that the distinction between citizens and noncitizens is baked into the communicative content of the First Amendment itself.

Well, I can conceive of the argument.  The First Amendment, I think it is generally agreed, refers to  an antecedent right which the text codifies.  If it had been understood in England that the right inhered only in subjects and if that understanding carried over into American thought about abridging the freedom of speech in the colonies -- that is, that it was their right as English subjects -- then it seems quite possible that the original public meaning of the language in context was that the freedom of speech was a freedom of citizens only.  (To be clear, I am not at all advocating that this is the original meaning, only that it could be the original meaning depending on what the history showed.)  Perhaps there's no basis in the text, read in the abstract, for such a distinction, but even public meaning textualists don't think the text should be read in isolation from its context.

(And as an aside, the title of the article is obviously a gross misnomer because of course immigrants who are citizens have freedom of speech; the question is whether people who are in the country unlawfully, whether immigrants or just visitors, have freedom of speech -- but that would not make as snappy a title).


Seth Barrett Tillman: Lincoln and Merryman
Michael Ramsey

Seth Barrett Tillman (Maynooth University Department of Law) has posted Lincoln and Merryman on SSRN.  Here is the (refreshingly short) abstract:

My goal is to displace the several factual and legal myths associated with Ex Parte Merryman, and to explain the practical modern relevance of this project.

This short but very insightful essay continues the discussion on this blog and elsewhere about Lincoln and judicial supremacy.  From the introduction:

Lincoln sent an order to military commanders granting discretion to suspend habeas. That order meant, as Lincoln understood it, at least, that the military had authority to arrest, seize, and detain individuals suspected of treasonous activity, and if the detained person brought judicial proceedings in regard to the arrest etc, that the military could put in a plea or defense of proper authorization by the President under the Suspension Clause. ...

Did Lincoln also intend that his order was a direction to military commanders to ignore or defy judicial orders granting habeas should the courts determine that Lincoln had no authority to suspend habeas? In other words, did Lincoln intend that his order instructed or directed the military to ignore or defy court orders granting habeas prior to Congress’s reviewing the matter? We simply do not know, and one reason we do not know is that Taney never issued any order in Merryman to release the prisoner.

And from the core of the argument:

When discussing Dred Scott, Lincoln plainly stated that he would not resist (and others should not resist) the Supreme Court’s decision as it applied to the parties. As to Merryman and other civil war habeas cases, before anyone ascribes to Lincoln even thinking that it was appropriate to ignore or defy a proper judicial order, much less that he actually granted express authority to ignore or defy such an order, you need something much, much more than Lincoln’s ambiguous order to suspend habeas. You need facts. Perhaps there is a Merryman power permitting the President (in certain circumstances) to ignore court orders, perhaps there is not. It is an interesting constitutional question which has occupied great minds, and I don’t pretend to know the answer to it or to other questions relating to departmentalism or the ultimate limits of Executive Branch power during emergencies. But I do know this. There is nothing in Merryman indicating that Lincoln believed he had any such power. And some of those who have written otherwise have done so on the basis that Taney issued an order in Merryman directing the President to release Merryman, but which the President ignored or defied. That position is plainly wrong: Taney never issued any such order.

As to what Lincoln intended in the time period following his suspension order and following Merryman, that is, did his inaction indicate that be believed he had legal authority to ignore or defy judicial orders? We will never know the answer to this question, and we can never know for the simple reason that no such order was issued in Merryman directed at the President to do anything or to refrain from anything. For all I know, there may have been other civil war habeas actions where a court issued a judicial order granting habeas. But I am reasonably confident that Lincoln was not a named party to any such case, just as he was not a party to Merryman. As a non-party, any failure by the Government to free such a prevailing party, i.e., a prisoner, in a habeas action cannot be ascribed to Lincoln. As a result, Lincoln could not be subject to contempt for violating any such order, nor could Lincoln be made a defendant in any subsequent damages action. Where (other) Executive Branch officers refuse to obey a judicial order directed to them, i.e., an order granting habeas, Lincoln could be said to be responsible in the political sense – the President is responsible to supervise Executive Branch subordinates and his failure to do so subjects him to impeachment and being turned out of office by the people at the next regular election. But such an abstract failure to supervise (under the Take Care Clause) does not establish that President Lincoln believed he could legally authorize his subordinates to ignore or defy judicial orders, much less establish that Lincoln did so either in Merryman or in relation to any other civil war case.


Tara Grove: Reconsidering the Political Question Doctrine
Michael Ramsey

Tara Leigh Grove (William & Mary Law School) has posted Reconsidering the Political Question Doctrine (New York University Law Review, forthcoming) on SSRN.  Here is the abstract:   

This Article challenges the conventional narrative about the political question doctrine. Scholars commonly assert that the doctrine, which instructs that certain constitutional questions are “committed” to Congress or to the executive branch, has been part of our constitutional system since the early nineteenth century. Furthermore, scholars argue that the doctrine is at odds with the current Supreme Court’s view of itself as the “supreme expositor” of all constitutional questions. This Article calls into question both claims. The Article demonstrates, first, that the current political question doctrine does not have the historical pedigree that scholars attribute to it. In the nineteenth century, “political questions” were not constitutional questions but instead were factual determinations made by the political branches that courts treated as conclusive in the course of deciding cases. Second, when the current doctrine was finally created in the mid-twentieth century, the Supreme Court used it to entrench, rather than to undermine, the Court’s emerging supremacy over constitutional law. Under the current doctrine, the Court asserts for itself the power to decide which institution decides any constitutional question. With control over that first-order question, the Court can conclude not only that an issue is textually committed to a political branch but also that an issue is committed to the Court itself. This analysis turns on its head the assumption of scholars that the current doctrine is at odds with judicial supremacy. The modern political question doctrine is a species of — not a limitation on — judicial supremacy.


Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy
Mike Rappaport

After a short detour responding to Mike Paulsen, I am back to elaborating on my view of the departmentalism/judicial supremacy debate.  As I noted in my last post, the basic question turns on whether the executive or Congress must follow judicial precedents.

What might obligate the executive or Congress to follow judicial precedents?  One starts, of course, with the text of the Constitution.  The judicial power extends only to “cases” and “controversies.”  Therefore, in the absence of anything else, a judicial decision cannot bind other than as to the judgment.  The judgment decides the case; the precedent is about possible future cases that have not arisen.  This is part of the core of the case for departmentalism.

This textual argument involves not only departmentalism, but also the related question of the bindingness of judicial precedent as to courts.  Those who disagree with the bindingness of precedent often in part justify their position on the ground that judges only get to decide cases, not to establish future rules.  Thus, there is a similarity of arguments as to departmentalism and the denial of the bindingness of judicial precedent on courts.

To get to a judicial supremacist position, one needs to find another source of the obligation to follow the judicial precedents than the simple power to decide cases and controversies.  Similarly, to find an obligation of courts to follow judicial precedent, one needs to find another source of that obligation.  In the case of judicial precedent, people often find it in one of two places – either in the Constitution itself through the judicial power or in federal common law (or to be more precise in the general law).  In our work together, John McGinnis and I (following John Harrison) argue that the courts’ obligation to follow judicial precedent rests principally on federal common law.

A similar argument might follow for judicial supremacy.  Thus, one might find the basis for the executive and the Congress to follow judicial precedents either in the Constitution (principally in the judicial power) or in the common law.  I think that one of these two supplies the rule.  Of course, whichever one supplies the rule, there needs to be evidence for that view.  In both cases, there should be evidence that the executive and the legislature regularly followed judicial precedents.  In the next post, I will discuss the evidence a bit more.

Before getting further along in the argument, I should note that I do not necessarily believe the evidence supports an obligation of the executive and legislature to follow a single decision of the courts.  As I shall discuss further, it may be that the executive and legislature were only obligated to follow a series of decisions of the courts.  Until that series of decisions occurs, the executive and legislature might have more discretion to determine what interpretations to follow.  One might question whether this is appropriately termed judicial supremacy, which is why I describe my position as leaning towards judicial supremacy rather than embracing it.

(Cross posted at the Liberty Law Blog)

Gerard Magliocca: How Did the Bill of Rights Become the Bill of Rights?
Michael Ramsey

Gerard N. Magliocca (Indiana University Robert H. McKinney School of Law) has posted How Did the Bill of Rights Become the Bill of Rights? on SSRN.  Here is the abstract:      

This Article argues that the Bill of Rights is a legal fiction that legitimates the exercise of federal authority and judicial review. 

At the Founding, bills of rights were revolutionary assertions that some states used to justify secession from the British Empire. During the debate over the Constitution, the absence of a bill of rights was a rallying cry for Anti-Federalists who mistrusted the establishment of a new national government. The First Congress responded with the first set of constitutional amendments, but hardly anyone then (or for a long time thereafter) called that text a bill of rights. Why? In part, the answer is that the state bills of rights at the time almost all came near the start of their constitutions and contained aphorisms about natural rights and popular sovereignty comparable to what was in the Declaration of Independence. What Congress wrote, by contrast, was put at the end of the Constitution and was largely free of rhetoric. Thus, in a formal sense the first set of amendments did not look like what people expected from a bill of rights. Moreover, there was no functional goal served by calling the amendments a bill of rights once they were ratified. The label was irrelevant.

Prior to the 1930s, the modern definition of the Bill of Rights was used extensively in three brief periods when there was a purpose for invoking that brand name. The first came during Reconstruction, when some members of Congress, especially John Bingham, sought to overturn Barron v. Baltimore and extend most or all of the first set of amendments to the states. Unlike the Anti-Federalists, who used the bill of rights trope to defend states-rights, Bingham and his allies embraced the label to increase federal power. When the incorporation debate arrived at the Supreme Court three decades later, Justice John Marshall Harlan picked up on Bingham’s lingo in dissenting from the Court’s refusal to abandon the spirit of Barron. Second, the “Bill of Rights” was trotted out after the Spanish-American War to legitimize our rule over the Philippines. The acquisition of colonies was highly controversial, and critics such as William Jennings Bryan argued that a constitutional democracy could not long endure as an empire that denied the protections of the “Bill of Rights” to its foreign subjects. Congress answered this challenge by extending parts of the first set of amendments to the Philippines, and in subsequent decisions the Supreme Court called this part of the Organic Act a territorial bill of rights. Third, when Theodore Roosevelt attacked judicial review by state courts as part of his platform to win the Republican presidential nomination in 1912, President William Howard Taft replied that state courts needed that power to save the Bill of Rights, even though most the first set of amendments did not apply to the states at the time. 

The New Deal and World War II elevated the Bill of Rights to its present status as a means to support enhanced federal authority. Liberals are fond of Franklin D. Roosevelt’s proposed “Second Bill of Rights” on economic security, but he discussed the First Bill of Rights more often and in greater detail than all of his predecessors. He brandished the Bill of Rights in part to deflect charges that the New Deal was a dangerous invasion of individual freedom. The attack was false, FDR said, because the gold standard of liberty was the Bill of Rights, and those liberties were not being infringed. Roosevelt also stressed the Bill of Rights to distinguish the United States from the Third Reich. Prior to World War Two, this sort of comparison was meant to suggest that federal inaction could give use to a domestic tyranny that would erase our rights. A week after Hitler declared war on America, though, the President repackaged the Bill of Rights as a patriotic emblem with a dramatic radio address on the first “Bill of Rights Day” that expressly contrasted the values of the first set of amendments with Nazism. 

FDR’s emphasis on the Bill of Rights was part of a broader change in popular and legal culture, and in 1940 the Court started citing the Bill of Rights to legitimize its decisions. Following the “switch-in-time” of 1937, the Justices needed a new justification for judicial review, and the Bill of Rights was an excellent tool for that purpose. West Virginia State School Board of Education v. Barnette gave a canonical defense of judicial review in 1943 by connecting the two ideas: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities, and to establish them as legal principles applied by the courts.” In 1965, the Court elaborated on this idea in Griswold v. Connecticut and grounded the right of privacy in the claim that the “guarantees of the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In these cases (and others), the Justices flourish the Bill of Rights as a symbol to shore up decisions that are novel.

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


New Issue of the Harvard Journal of Law and Public Policy
Michael Ramsey

The latest issue of the Harvard Journal of Law and Public Policy (vol. 39, no. 2) has several articles of originalist interest, most notably Robert Natelson, The Founders' Origination Clause and Implications forthe Affordable Care Act.  Here is the abstract:

This Article is the first comprehensive examination of the original legal force of the Constitution’s Origination Clause, drawing not merely on the records of the 1787–90 constitutional debates, but on Founding-Era British and American legislative practice and other sources. This Article defines the bills governed by the Origination Clause, the precise meaning of the House origination requirement, and the extent of the Senate’s amendment power. For illustrative purposes, the Article tests against its findings the currently-litigated claim that the financial penalty for failure to acquire individual health insurance under the Patient Protection and Affordable Care Act is invalid as a Senate-originated “tax.” The Article concludes that this “tax” was a valid Senate amendment to a House-adopted revenue bill. The Article also concludes, however, that the amendments that added the PPACA’s regulatory provisions and appropriations were outside the Senate’s amendment power.

Also, two interesting student notes: 

First, Textualism and the Presumption of Reasonable Drafting by Cory R. Liu.  Here is its conclusion:

Textualists have described their approach to statutory interpretation as the discernment of what a reasonable reader, or what a median legislator, would understand the statutory text to mean. This description of textualism is problematic because empirical evidence suggests that textualist interpretive techniques, such as semantic canons and structural analysis, are not reliable approximations of how ordinary legislators understand statutes. Furthermore, the reasonable reader account of textualism fails to convey the difference between textualism and purposivism. Textualists should abandon the reasonable reader framework and replace it with the reasonable drafter framework, which asks what an objectively reasonable person would have intended the statutory text to mean. Textualists should not fear the label of “intentionalist,” and indeed, they should embrace it. Adherence to legislative intent is the cornerstone of the faithful agent vision of the judicial role. What distinguishes textualists from purposivists is that textualists look to the statutory text for legislative intent while employing a presumption of reasonable drafting. The presumption of reasonable drafting is the unique way in which textualists seek to promote judicial restraint and respect for the democratic process.

Second, Liberty Requires Accountability: Checking Delegations to Independent Agencies, by David Casazza.  An excerpt:

The Court’s neglect of the nondelegation doctrine and its post-Humphrey’s Executor removal power jurisprudence both independently raise serious threats to the political accountability of the rulemaking process. In combination they do even greater damage to the Constitution’s foundational principles of self-government. Together they allow the establishment of a fourth branch of government that is unaccountable to the people yet wields enormous regulatory power over them. For those who find this situation unacceptable, a solution must be found. Three will be considered below. First, we will consider whether courts should refuse to give Chevron deference to independent agencies and permit delegation to independent agencies only after applying a higher standard of statutory direction than J.W. Hampton’s “intelligible principle” test. Second, we will consider whether the President should test the boundaries of “for cause” removal to restore executive oversight of regulatory agencies. Finally, we will consider whether courts should impose on Congress an exclusive choice of either delegating policymaking authority (that is the power to promulgate rules and conduct adjudications) to an agency or insulating the agency from executive oversight.


Bolling v. Sharpe and Originalism
Mike Rappaport

Mike Ramsey reports on the posting of a new article by Gregory Dolin that attempts to justify the case of Bolling v. Sharpe, which held that a Fourteenth Amendment equality requirement applies to the federal government. This is a difficult argument to make, since the two provisions which are most likely to apply an equality requirement -- the Privileges or Immunities Clause and the Equal Protection Clause -- apply only against the states, not the federal government. There is some evidence that the Due Process Clause of the Fourteenth Amendment applies an equality requirement, but that Clause applies only to the states. There is not much evidence that the Fifth Amendment Due Process Clause, which applies to the federal government, contains such a requirement.

Dolin argues that an equality requirement derives from the Citizenship Clause of the Amendment, which provides that “All persons born or naturalized in the United States . . . are citizens of the United States.” While I have not read Dolin’s paper, this is a common argument these days, most recently defended by Ryan Williams in the Virginia Law Review.

Dolin argues

In this Article I argue that Bolling is justifiable as an originalist matter if one properly interprets the Citizenship Clause of the Fourteenth Amendment. Properly understood, the clause was meant to protect not just a right to a passport or nationality, but a much broader right of equal participation in the civic life of the Nation. The term “citizen” was understood by the framers and ratifiers of the Fourteenth Amendment to encompass a wide scope of political rights, including a right to equality before the law. When viewed from that perspective, it becomes apparent that Bolling was correctly decided not only from the political perspective, but from legal originalist one as well.

This type of argument is seriously problematic. In a recent article, I addressed this position in a footnote that sets forth the most serious problems:

In recent years, some scholars have argued that a Fourteenth Amendment equality principle applies against the federal government. . . . [through] the Citizenship Clause of the Fourteenth Amendment . . . . While this is not the place to attempt to rebut this argument, a few words may be in order. First, it would be extremely odd to read the Fourteenth Amendment in this way. The obvious meaning of the Amendment is that it confers citizenship rights in the Privileges or Immunities Clause, which stated that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. CONST. amend. XIV, § 1. If the Amendment had been intended to protect the privileges or immunities of citizenship against the federal government, it could have easily used the language “[n]o State nor the federal government,” as the Fifteenth Amendment would shortly do. Instead, the language of the Fourteenth Amendment makes perfect sense. The first sentence of the Amendment, the Citizenship Clause, indicates who is a citizen (persons born or naturalized in the United States); the second sentence, in the Privileges or Immunities Clause, indicates what their rights are (no state may abridge the privileges or immunities of citizens).

Second, the historical context for the Fourteenth Amendment is also informative. The Thirteenth Amendment, which had prohibited slavery, had failed to provide a firm foundation for the Civil Rights Act of 1866. While some Republicans had argued that not being a slave meant possessing basic civil rights, others argued that slavery referred to a specific institution and that one could be free of the bondage of chattel slavery without enjoying basic civil rights. One reason to pass the Fourteenth Amendment was to place the Civil Rights Act on a secure constitutional footing in a way that the Thirteenth Amendment had failed to do. But to rely on an inference that the mere status of citizenship conferred basic civil rights was similar to relying on the inference that the absence of slavery conferred such rights. Such reliance on an unclear inference would have committed the same error that the enactors of the Thirteenth Amendment had, in an amendment intended to correct that error. It makes much more sense to see the Fourteenth Amendment enactors as spelling out the rights of citizens—protecting against states abridging their privileges or immunities.

It is also relevant that applying an equality requirement to the states, but not the federal government, reflected the world view of the Framers of the 14th Amendment.  Based on their own experience leading up to the Civil War and during Reconstruction, they believed that the states were disposed toward abridging equality rights much more than the federal government was.  I develop this point and explain why these Framers excluded the federal government from the equality requirement here.

Ilya Somin Responds on Originalism and the Rule of Law
Michael Ramsey

Here is Ilya Somin's response to my comment on his Liberty Law Forum essay: The rule of law as a justification for originalism.  It's a long and insightful post -- here is a sense of it:

He [ie., me] argues that the case for originalism should not be based on “contingent” consequential factors. After all, even if originalism does promote liberty in some cases, it might not do so in others. It should instead be justified based on considerations “independent of particular results.” The principal such justification, in Ramsey’s view, is “the rule of law and the benefits that flow from it.

The rule of law is a slippery term with a number of different possible meanings. But unless it is defined circularly as the enforcement of the original meaning of a law regardless of content, the relationship between originalism and the rule of law is no less contingent than the connection between originalism and liberty.

For example, the rule of law is often defined in contrast to “the rule of men.” Whereas the former is based on general, impersonal rules, the latter is subject to the vagaries of the bias and discretion of individual government officials. Whether or not originalism promotes the rule of law in this sense is clearly contingent. The original meaning of some parts of the Constitution could potentially give wide-ranging discretion to government officials, that gives them broad scope to apply various personal biases.

I pretty much agree with what Professor Somin says here, and in similar vein later in the essay.  Perhaps the most that can be said for originalism is that it offers the possibility of the rule of law, if the document being interpreted contains somewhat definite rules.  But I nonetheless think that's not a bad argument for originalism.  First, it beats the prominent alternatives -- in particular, living constitutionalism  necessarily offers less of a possibility of the rule of law, because it embraces, in effect, whatever the judge of the moment thinks is best.  Second, people writing the rules (in whatever context, but especially in constitutions) have an incentive to write definite rules (otherwise, they lose their ability to influence later decisions).  I readily admit that, depending on the circumstances, they may have competing incentives to be vague and imprecise.  But the incentive to control future actors -- which is a fundamental motivation for writing rules in the first place -- suggests that, on average and over time, written rules should tend to contain definite content, and thus adherence to those rules as written (i.e., originalism) is likely to produce a stronger version of the rule of law than the alternatives.


Paulsen on Departmentalism versus Judicial Supremacy
Mike Rappaport

I have started a series of posts on the departmentalism – judicial supremacy debate in an effort to explain my position, which inclines towards, but does not go all the way towards judicial supremacy.  But I am going to interrupt that planned series to briefly respond to a post written by my former Yale Law School classmate and OLC colleague Mike Paulsen.  Mike sets up a “horrible hypothetical” – one that involves a horrible situation – involving an awful law that prohibits speech that the First Amendment protects, punishes its violation with torture that violates the Eighth Amendment, and unconstitutionally prohibits the President from pardoning the persons convicted.  (It also violates other clauses as well.)  The Supreme Court then upholds the constitutionality of the law as to an individual. Mike asks, among other things, whether the President is constitutionally obligated to enforce the law.

Legally, the answer would seem to be clear.  The courts, with Supreme Court review, have issued a judgment that requires the torturous punishment and prohibits pardons.  But Mike’s horrible hypothetical appears designed to make us resist this conclusion – it is just such a horrible decision and outcome!  But there are several reasons that allow us to easily avoid the pull of this hypothetical.

First, the situation Mike envisions is extremely unlikely.  There is a wide consensus these days that the law would be unconstitutional.  It would not be enacted into law by both houses of Congress and the President.  And it would not be approved by the courts, including the Supreme Court.

A law professor can always come up with unrealistic, horrible hypotheticals.  We should answer them, but we should also eschew their emotional pull when they are unrealistic.  Mike is a believer in a broad Commerce Clause.  I could imagine hateful and horrible laws that Congress might enact that Mike would presumably believe were constitutional.  That does not make his reading of the Commerce Clause wrong (although I do believe in a much narrower reading of the Clause than he does on other grounds).

More to the point, one can easily change the hypothetical so that it pulls in the opposite direction.  Suppose that the President asserts the right to summarily execute people who criticize the government.  The executive arrests an individual, who successful seeks a writ of habeas corpus in the courts.  The President then refuses to follow the writ, claiming it is unconstitutional, and executes the person.  Pretty horrible as well – and one could easily add all kinds of wrinkles to make it worse.

Second, whatever one thinks about the First Amendment and Eighth Amendment violations, the violation of the Pardon Power is absolutely clear.  It is inconceivable that the courts would approve of this.  And if the Pardon Power were allowed, then the President has an easy response to the problem: he pardons the person who has been convicted.

Third, the hypothetical is problematic because it neglects the essentials of the rule of law.  The law, especially when it appropriately consists of rules, will sometimes lead to bad results.  That is the price we pay for the constraining of discretion that is essential to tolerable government.  The trick is to have rules and procedures that minimize the extent to which there are bad results.

The original meaning of the U.S. Constitution, as amended, does a good job of minimizing those bad results.  Mike has to come up with such an unrealistic hypothetical because our system would guard against this problem.  If one wants to make this type of argument – and it is not clear that such arguments are relevant to the original meaning – one needs to look at the overall consequences from the two competing interpretations.  And I am confident that we are safer with the checks from the courts than from the unilateral actions of a president.

Finally, let’s suppose that the law does get passed and approved.  What should the President do?  Even though he has a legal obligation to enforce it, I would argue that he should not do so.  The law is an important value, but not the only the value and not always the highest value.  The President could announce that he is going to pardon the individual, that he regards the law as seriously unconstitutional, and that the Congress can judge him as they will in any impeachment proceeding that they might decide to bring.

A Lot More on Constitutional Avoidance
Michael Ramsey

In the latest issue of the Harvard Law Review, Neal Kumar Katyal and Thomas P. Schmidt: Active Avoidance: The Modern Supreme Court and Legal Change.  From the introduction:

The Supreme Court in the last few years has resolved some of the most divisive and consequential cases before it by employing the same maneuver: construing statutes to avoid constitutional difficulty. Although the Court generally justifies the avoidance canon as a form of judicial restraint, these recent decisions have used the canon to camouflage acts of judicial aggression in both the statutory and constitutional spheres. In particular, the Court has adopted dubious readings of federal statutes that would have been unthinkable in the canon’s absence.  We call this move the “rewriting power.”  The canon has also been used to articulate new constitutional norms and significant breaks from settled doctrine.  We call this move “generative avoidance.”  Both practices are facets of the broader phenomenon of “active avoidance,” which is the use of the avoidance canon to usher in legal change.

With commentary from Caleb Nelson:  Avoiding Constitutional Questions Versus Avoiding Unconstitutionality.  From the introduction:

In this month’s issue, Professor Neal Katyal and Thomas Schmidt join a distinguished group of lawyers and judges who criticize the “canon of constitutional avoidance” — the idea that courts should try to interpret statutes so as to avoid raising difficult questions of constitutional law. Although the Supreme Court has described this canon as a “settled policy,” the canon exists more by dint of repetition than by force of argument. Its critics include the most eminent circuit judge of the last generation, two of the most eminent circuit judges of the present generation and a host of thoughtful scholars

All three of the judges just mentioned, and many of the scholars, have criticized only the canon that favors avoiding serious constitutional questions. They have not objected to a separate canon that favors avoiding actual unconstitutionality — the longstanding principle that courts should not lightly interpret a statute in a way that makes it unconstitutional if some other interpretation is available. Katyal and Schmidt downplay this distinction. In part, that reflects their assessment of current practice: they agree with Professor Adrian Vermeule that the canon about avoiding actual unconstitutionality (which Vermeule dubbed “classical avoidance” to reflect its historical pedigree) “has been mostly superseded” by the canon about avoiding even constitutional questions (which Vermeule dubbed “modern avoidance”). But Katyal and Schmidt see little reason to resurrect the distinction. In their telling, both canons are variations on the same theme, and both are subject to the same objections: the canons lead to bad constitutional doctrine (because they enable judges to articulate new constitutional principles without the discipline that allegedly comes from “actually having to strike down a law”), and they also lead to bad interpretations of statutes (because they encourage judges to distort statutes in order to avoid whatever constitutional difficulties the judges have identified).

I come to this topic having been persuaded by the prior critics, so this Response defends the distinction that Katyal and Schmidt downplay. To begin with, I do not think that the canon about avoiding unconstitutionality is as rare as Vermeule suggested. Admittedly, courts often do conflate it with the canon about avoiding constitutional questions, and the Supreme Court sometimes uses a single formulation for both. But the lower federal courts and (especially) the state courts continue to refer specifically to the canon about avoiding unconstitutionality. Likewise, the modern Supreme Court has indicated that the canon about avoiding unconstitutionality takes precedence over the canon about avoiding constitutional questions— a conclusion that reflects not only an ongoing distinction between the two canons but also an implicit assessment of their respective justifications.

I agree with Professor Nelson (as I usually do).  There's nothing wrong with construing a statute to avoid unconstitutionality, if the unconstitutionality is clear and the statute is ambiguous.  (Or even perhaps if the statute is not really ambiguous, as in Mossman v. Higginson (1798) (holding that "the 11th section of the Judiciary Act can and must receive a construction consistent with the Constitution")).  But the constitutional avoidance canon allows the Court to thwart the will of Congress without committing itself to a constitutional ruling.

In Mila Sohoni's recent article on the avoidance canon in King v. Burwell (linked here) she describes the justifications of the avoidance canon as twofold:  "honoring Congress’s presumed intent not to legislate unintentionally close to a constitutional line and preventing courts from unnecessarily issuing constitutional opinions."  She finds these justifications lacking in King (I agree).  And I would say they are lacking more generally.  

(1) Why would we think Congress would want to avoid legislating close to a constitutional line, so long as Congress thought it was on the right side of the line?  I would think it as likely that Congress would want to legislate right up to the line.  (2) I'm not persuaded of the value of avoiding constitutional rulings.  More guidance is better.  Avoidance decisions raise issues without answering them.  But more importantly, if the the best meaning of the statute (after applying all appropriate rules of statutory construction) is "x", a court lacks power to find that the statute means less than "x" for the convenience of the court (that is, so that the court can avoid the difficult question).  A court's obligation is to apply the statute.  (I suppose if the statute is perfectly ambiguous -- that is, there are two exactly equal meanings) perhaps the avoidance canon could be a tie breaker, but it's not likely that this will happen often).  In short, a court should go where its duty takes it, and if that duty requires a constitutional decision, then it is the court's obligation to decide.


Ed Whelan Responds to Ilya Somin on Libertarian Originalism
Michael Ramsey

At Liberty Law Forum, Ed Whelan: The Use and Abuse of Originalism (responding to Professor Somin's Liberty Forum essay How Originalism Promotes Liberty).  An excerpt:

Whether a method of interpretation succeeds in gleaning the meaning of a legal text is a different question from whether those purportedly governed by that legal text should accept that meaning as binding. As law professor Lawrence Solum puts it, the first is a “claim about meaning,” whereas the second is a claim about the “moral significance” of that meaning.[1]

Somin’s essay, as I understand it, bears only on this second question. His evident goal is to persuade his fellow libertarians, and others who place a high value on negative liberty, that they should be inclined to accept an originalist reading of the Constitution as morally binding. Why? Because an originalist reading, according to his argument, is more likely than competing interpretive methodologies to protect negative liberty.

Somin’s consequentialist justification for originalism strikes me as weak (even beyond its admitted incompleteness) and disabling. What I find especially curious is that he does not build on any claim that originalism, or some version of it, accurately interprets the meaning of the Constitution.

The proposition that originalism is the soundest method of constitutional interpretation cannot, by itself, establish that the constitutional readings it generates are morally binding on Americans. But, unlike Somin, I would make this proposition an essential part—indeed, the principal part—of my normative justification. All that needs to be added to it, I would suggest, is something like the “fidelity thesis” that Lawrence Solum sets forth: namely that,

in a reasonably just society, citizens, officials, and judges should adopt an attitude of loyalty towards the law and comply with a corresponding obligation to comply with the law absent overrid[ing] reasons of morality.

To put my point somewhat differently: I agree with Somin that the normative justification for an interpretive theory—in his words, why “we should obey” it—depends on “some value or set of values external to the text itself.” Somin seems to think that this means that the normative choice among competing theories must rest on an assessment of their consequences, “on their effectiveness in promoting specific values.” But I would instead invoke the external value that, in a reasonably just society, it’s presumptively wrong to lie about, or to misstate, what the Constitution means.

Somin’s exclusive focus on consequences would severely impair him in contesting the competing consequentialist claims made by proponents of other interpretive theories (if indeed the term “interpretive” can even be sensibly applied to living-constitutionalist theories that leap as quickly as possible away from constitutional text). These proponents will of course have their own conceptions of liberty and other values that they think constitutional theory should advance. On what basis can Somin argue that his normative justification is more compelling than theirs—if, that is, he doesn’t build on an underlying claim that originalism is more accurate in generating the real meaning of the Constitution?

There are several other important points in the essay, including thoughts on democratic self-governance and judicial restraint.

I'm generally with Ed Whelan here.  To the extent Professor Somin is claiming that originalism should be preferred because it promotes liberty, I find that worrisome in the sense that it is so contingent.  First (as Professor Somin acknowledges) it suggests that while originalism is a good approach for the U.S. Constitution, it might not be for other constitutions (or statutes), reinforcing the idea that originalism is just one tool among many for reaching the right result.  

Second, although originalism generally may promote liberty, presumably it doesn't always do so (for example, an aggressive doctrine of substantive due process promotes liberty, at least in the libertarian sense, but most originalists don't think substantive due process can be justified).  If the goal is liberty, why use an originalist approach to clauses that aren't liberty-promoting in their original meaning?  Why not use a broader approach that uses originalism when it helps reach the goal and otherwise uses something else?

Third, to extend the prior point, if the goal is liberty why not cut out the originalism middleman altogether and simply choose the interpretation that most promotes liberty?  Professor Somin has some responses but I don't find them persuasive.

I agree that originalism needs a normative justification but I think the justification is stronger if it's independent of particular results.  I would say that the justification is principally the rule of law and the benefits that flow from it (which I think is related to what Ed Whelan is saying).


Marty Lederman on Zivotofsky v. Kerry
Michael Ramsey

At Just Security, Marty Lederman has a series of interesting posts on Zivotofsky v. Kerry, with this one focused on the exchange between Justice Thomas and Justice Scalia:  Thoughts on Zivotofsky, Part Four: Justice Thomas as constitutional iconoclast (or, “What was so terrible about King George III, anyway?”).

Professor Lederman seems especially upset by the proposition that Congress' power to carry into execution the powers of other branches does not allow Congress to limit the power of other branches:

As I noted in my previous post, the other eight Justices in Zivotofsky strongly affirm Congress’s authority to enact laws “necessary and proper” to regulate the President’s own constitutional authorities.  (They disagree among themselves as to whether that congressional power to restrict the President carries over to statutes regulating the President’s recognition power; but otherwise, they express similar views of Congress’s extensive powers to limit or direct the President in the area of foreign affairs.)

Justice Thomas would reject that well-established understanding altogether.  As he has done in recent separate opinions in cases such as ComstockKebodeaux and Gonzales v. Raich, he articulates a dramatically constricted view of Congress’s necessary and proper power, in which much of what Congress has done over the course of our constitutional history would be deemed not “proper.”  In particular, when it comes to legislation regulating the conduct of the other two branches, Justice Thomas would hold that such a law is not proper if “the branch to which the power is allocated objects to the action” (and perhaps, he adds, even if that branch does not object!).  Thomas favorably cites an article by Sai Prakash and Mike Ramsey to the effect that “Congress has the general power to legislate in support of the President’s foreign policy goals.  But . . . [s]ince it is derivative of the President’s power, it must be exercised in coordination with, and not in opposition to, the President.”

Suffice it to say that this understanding of the Necessary and Proper Clause would effect a fairly radical shift in our constitutional history.

I'm not sure why this is a radical view, and Professor Lederman doesn't explain.  All I meant by it is that if Congress relies on its power to pass laws necessary and proper to carry into execution the President's power, Congress must be acting in a way that is actually furthering the President's power, not restricting it.  Otherwise, simply as a textual matter, I don't it's accurate to say that Congress is carrying into effect; Congress is keeping it from taking effect.  (I assume this is also all Justice Thomas meant).

In Zivotofsky, for example, I don't think one can plausibly say that Congress is carrying into effect the President's recognition power when Congress tells the President what to recognize.  This is Congress taking over the recognition power, not helping the President to exercise it.  It's like me helping you eat your ice cream, not by getting you a spoon, but by eating it myself.

However (and I think there may be some misunderstanding here) this proposition does not prevent Congress from passing laws that restrict or direct the President's foreign affairs powers pursuant to other powers of Congress.  Thus Justice Scalia thought that Congress' naturalization power enabled Congress to make the regulations at issue in Zivotofsky.  If that's right, then Congress can rest on that power, and Congress' power to carry into execution the President's powers is irrelevant.  The only reason the latter power mattered to Justice Thomas is that he thought (and I agree) there was no other relevant power of Congress.

As a result, I don't think Justice Scalia's sneer about King George is appropriate.  The point about Congress' power to carry into execution the President's powers is fairly minor and comes into play only when Congress has no other enumerated power.  Congress has many powers in foreign affairs and I fail to see how having to rely on them would leave Congress powerless to direct foreign affairs to a significant extent.

As a further note, contrary to Professor Lederman I don't think eight Justices rejected Thomas' point here -- I think none of them reached it.  The dissenters thought Congress had power under the naturalization clause.  The majority didn't address the question whether Congress had an Article I power because it thought, in any event, the President had an exclusive Article II power that displaced any power Congress might have.

Michael Paulsen Returns (with an Exam Question)
Michael Ramsey

Just as the judicial supremacy debate seemed to be getting stale (but still ongoing -- see here), Michael Stokes Paulsen (who in a sense started it all) is back with an exam question testing the binding nature of an indisputably wrong Supreme Court decision.

The question is here.

His "model answers" to the four parts of the exam are herehere, here and here.

I commit to taking the exam at some point, once a pending deadline has been met.


Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions
Mike Rappaport

Since I was away on vacation when this debate began, I am coming late to the party.  But I have some distinctive views on this issue and so I thought I would write some posts about the matter.

I should start out by saying that I have something of an intermediate view of the matter – I recognize that both sides have some strong points to make.  In the end, I stand much closer to the judicial supremacy side, but for different reasons than at least some of those defending the position.

I originally encountered this issue in law school and especially at the Meese Justice Department when Attorney General Meese gave a speech defending departmentalism.  I initially was attracted to a moderate departmentalist position, but over time I began to have second thoughts.  By the time I published this paper (here and here) in 1993, I had already moved towards seriously doubting the departmentalist position.  And I have only become more skeptical over time.

Let me start by drawing some distinctions.  In general, departmentalism is the view that each department or branch of the federal government makes decisions as to the law based on its own views.  Thus, the courts are not bound by the decisions of the Congress or the President.  And the Congress and the President are not bound by the decisions of the courts.  By contrast, judicial supremacy is the view that the Congress, the President (and the states) are required to follow the decisions of the courts.  (The recent debate has focused on constitutional questions, but it need not do so.  To conform to what others are discussing and to avoid making things too complicated, I will generally limit myself to constitutional matters.)

This general statement of departmentalism, however, glosses over a key distinction – the distinction betweeen departmentalism as to judgments and departmentalism as to precedents.

Departmentalism as to judgments holds that the executive (and the Congress) are not required even to follow the judgments of the courts.  Consider the following extreme example.  The executive branch imprisons an individual, who seeks a writ of habeas corpus and prevails in the courts.  While the courts order the executive to release the individual, the President disagrees with the court’s view of the Constitution and refuses to follow the order.  Under departmentalism as to judgments, the President’s action here is lawful, because he is not bound by the constitutional views of the courts.

By contrast, under departmentalism as to precedents, the President’s action here would be unlawful.  While the President is not obligated to follow the court’s constitutonal views in future cases, he is required to follow the judgments of the courts in specific cases.  Thus, the President must release the individual involved in this example.  In a future case, the President would not be required to follow the court’s decision – its precedent – until a court issued a judgment.

For the most part, I will ignore the departmentalism as to judgments position – even though a few commentators appear to hold it – on the ground that it is an extreme minority position and one that has very little basis in the original materials.  I know of no real originalist evidence that supports it and it has the enormous problem of rendering judicial decisions to be effectively nonbinding, which is inconsistent with a large amount of originalist evidence.

Thus, the real question is whether judicial supremacy or departmentalism as to precedents is the correct position.

(Cross posted at the Liberty Law Blog) 

Mila Sohoni: Novel Questions and the Avoidance Canon
Michael Ramsey

My colleague Mila Sohoni's article The Problem with “Coercion Aversion”: Novel Questions and the Avoidance Canon is now published by the Yale Journal on Regulation.  It takes up Justice Kennedy's suggestion, in the King v. Burwell oral argument, that the Court should construe the statute to allow subsidies on federal health insurance exchanges because otherwise it might be regarded as unconstitutionally coercing the states into establishing their own exchanges.  The article argues, however: 

Modern avoidance has two justifications:  honoring Congress’s presumed intent not to legislate unintentionally close to a constitutional line and preventing courts from unnecessarily issuing constitutional opinions.  The logic of these justifications disintegrates when the putative constitutional problem is a novel question of first impression that crystallized only after Congress legislated.  Congress can’t be presumed to have legislated in light of new constitutional problems that were not evident at the time of lawmaking, and the Court can’t claim to be leaving constitutional law undisturbed when its avoidance holding itself manufactures new constitutional doubts.  As a result, the Court should apply the canon to avoid truly novel constitutional problems only if it has exhausted other available tools of statutory interpretation, and even then only in preference to actual constitutional invalidation.

For King, this principle boils down to a simple syllogism.  Because (1) the constitutional problem of coercion by regulatory threat is novel; and because (2) the justifications for the modern avoidance canon disintegrate where the problem being avoided is novel; therefore (3) the Court should use coercion aversion to resolve King only as a last resort.  In King, an alternative avenue for resolving the case is necessarily available to a justice who would otherwise use the avoidance canon to circumvent this novel problem.  To avoid the ostensibly coercive reading of the statute, a justice must conclude that an alternative, non-coercive construction of the statute is “fairly possible” or “reasonable.”  But if there’s a “reasonable” reading of the ACA whereby tax credits are not linked to the creation of state exchanges, then a fortiori the ACA must fail to state unambiguously the conditions on the availability of tax credits—which would run afoul of the federalism clear-statement cases that require Congress to impose such conditions in unmistakable terms. Consequently, a justice inclined towards coercion aversion need not and should not rely on it to resolve the case—even if that justice would rule that a clearly worded regulatory threat of this kind was unconstitutional if she were unavoidably confronted with that novel question on the merits.


Michael Dorf and Josh Blackman on Zivotofsky v. Kerry
Michael Ramsey

At Dorf on Law, Michael Dorf: Zivotofsky May Be Remembered as Limiting Exclusive Presidential Power. From the conclusion:

... [O]ver the long run, I suspect that Zivotofsky will come to be seen as a relatively narrow ruling. Even Justice Jackson in Steel Seizure recognized that there could be cases in which an Act of Congress invalidly interferes with the president's exclusive powers. He described presidential power in case of such a conflict as at its "lowest ebb." He did not say truly exclusive presidential power is non-existent.

Indeed, if I am right, then just as Hamdi v. Rumsfeld is now routinely cited for Justice O'Connor's sweeping line that "a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens," even though the Hamdi Court allowed military detention of citizens, so too, Zivotofsky's repudiation of the broad language of Curtiss-Wright will come to overshadow the fact that the Court ends up invalidating an Act of Congress as unduly interfering with an exclusive presidential power.


It hurts, though, that earlier in the post Professor Dorf says that Justice Thomas' invocation of the residual theory of executive foreign affairs power is something close to Curtiss-Wright's extraconstitutional and exclusive presidential power foreign affairs power.  The central point of the first three chapters of The Constitution's Text in Foreign Affairs is that they are radically different theories.

Meanwhile, Josh Blackman notes 5 Questions from Zivotofsky that Justice Thomas raised but were “not necessary to resolve.”


Jeremy Jacobs on Utah Prairie Dogs
Michael Ramsey

At Greenwire, Jeremy P. Jacobs: Legal fight over prairie dog could chew hole in ESA (giving interesting background on People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service, the endangered species/commerce clause case discussed here).  It begins:

The Utah prairie dog -- tawny-furred, with black eyebrows and white-tipped tails -- looks like it hopped out of a Disney cartoon.

But the little burrowing rodent is seen as a monster in southwest Utah.

"Go talk to five people who live here and ask about the prairie dogs, and you're going to get an earful," said Matt Munson, a lawyer leading opposition here to federal efforts to protect the prairie dog under the Endangered Species Act. "Everyone has been impacted. People have lost businesses, people have lost their homes. People have been bitten. Their dogs have died. You name it, there have been all types of issues."

Munson and a group of property owners took the Fish and Wildlife Service to court over species law's "take" provision, which bars killing or harassing prairie dogs. And last November, a federal district judge in Utah sided with the Cedar City group, striking down the prohibition because it violated the Constitution's Commerce Clause. The law, the court held, cannot regulate the activity of a species that exists in just one state and has no impact on interstate economic activity.

The ruling shocked environmentalists and emboldened conservatives who had long questioned the take provision's constitutionality.


Suddenly, the government's appeal of the prairie dog decision has become one of the country's most important environmental cases.

Also one of the most important commerce clause cases.


SCOTUSblog Symposium on Zivotofsky v. Kerry
Michael Ramsey

SCOTUSblog's symposium on Zivotofsky v. Kerry is up, with contributions from Curtis Bradley (Duke), Eugene Kontorovich (Northwestern), Alan Morrison (George Washington) and me.  Here are the links: 

Zivotofsky and pragmatic foreign relations law (Bradley)

Zivotofsky was not about recognition by Congress or the President (Kontorovich).

President wins in Zivotofsky: Will there be another battle? (Morrison)

Justice Thomas gets it right in Zivotofsky (me)

All the contributions are excellent.  Here I want to briefly take issue with one aspect of Professor Bradley's insightful comments.  One of his central points is that the majority opinion in Zivotofsky is functionalist rather than formalist, and as such may undermine the suggestion (made by Harlan Cohen and by Ganesh Sitaraman and Ingrid Wuerth) that the Court is "normalizing" foreign relations law.

My counterpoint is: "functionalist" (or "not normalizing") compared to what?  

Curtiss-Wright, the Court's most aggressive statement on presidential power in foreign affairs (albeit mostly in dicta) claimed (a) that the U.S. foreign affairs power did not arise from the Constitution but rather from the inherent nature of sovereignty; and (b) that U.S. foreign affairs power was principally lodged in the executive because the executive was most suited to exercise it.  Dames & Moore v. Regan (applying the concurrences from Youngstown) claimed that the interactions between Congress and the President could be derived from speculation about what Congress had "acquiesced" to as a result of its non-action with respect to somewhat activities (and this was supposedly an improvement on Curtiss-Wright!).  These cases are about as far from the text and original meaning of the Constitution as it's possible to get.

Justice Kennedy's opinion in Zivotofsky is an enormous improvement.  First, Kennedy rejects Curtiss-Wright -- by name, but also by looking to the text and history of the Constitution to find the meaning of a particular power, rather than relying on a generalized foreign affairs power.  Second, he relies on a particular clause -- the ambassador reception clause -- to establish a particular presidential power.  Third, Kennedy relies on both history and structural considerations to find that power exclusive.  (Professor Bradley calls this latter move functionalism, but I think it is entirely permissible, even to a formalist, to ask whether the specific power in question is in its nature the type that needs to be exclusive -- indeed, that's part of my argument for why the declare war clause is exclusive to Congress.).  Fourth, the holding is categorical: that the president's recognition power is exclusive, period -- not that the recognition power is exclusive in this case, under some balancing test that may or may not apply indeterminately in later cases.

True, there's a bit more on modern needs and practices in the majority opinion than a formalist would like to see, and true also I think the majority is wrong about the scope of the reception power (as I say in my contribution, and as Eugene Kontorovich also argues at greater length in his).  But especially compared to Curtiss-Wright (or Dames & Moore), the Zivotofsky majority is more formalist, more aligned with ordinary constitutional adjudication, and more tied to text and historical meaning, than has often been the case in foreign relations adjudication.  So I would count it in favor of the Cohen/Sittarman/Wuerth thesis, not against it.

The Judicial Supremacy/Judicial Equality Debate Continues
Michael Ramsey

Ed Whelan responds to Randy Barnett here and here, at NRO Bench Memos.

Evan Bernick responds to Ed Whelan at Huffington Post: Judicial Equality and Its Critics: Dispelling the Myth of Majoritarianism.

I'm hesitant to prolong this discussion, but here's one further thought.  Barnett and Bernick seem to see the debate as mostly involving the powers of the Court versus Congress.  But I see it also (and perhaps even more so) about the Court versus the President.  At least the strong form of Ed Whelan's position really amounts to executive supremacy.  Consider:

1. The President seizes your property.  You sue to get it back.  The Court agrees that the President acted unconstitutionally and orders the property restored.  The President says that the Court got it wrong.  You don't get your property back.

2.  Congress passes a law saying the President must restore your property.  The President says the law is unconstitutional and he won't enforce it.  You sue under the statute.  The Court agrees that the President violated the statute and the statute is not unconstitutional.  The President says that the Court got it wrong.  You don't get your property back.

3.  You speak out against the President's abuses.  The President puts you in administrative detention.  You bring a petition for a writ of habeas corpus on the ground that the detention is not authorized by law.  The Court grants the writ. The President says that the Court got it wrong.  You stay in jail.

4.  Congress directs that the President end your administrative detention.  The President says the statute is unconstitutional.  You sue for your release.  The Court agrees that the statute is not unconstitutional.  The President says that the Court got it wrong.  You stay in jail.

5.  You sue a state official for acting unconstitutionally.  The Court agrees with you and orders relief.  The state official declines to comply.  You ask the federal government to step in.  The President says the Court got it wrong.  You don't get what you want.

6.  At your request, Congress directs the state official to stop acting unconstitutionally.  The state official declines to comply.  The President says Congress' statute is unconstitutional.  The Court says it is not.  The President says the Court got it wrong.  You don't get what you want.

The President, who controls enforcement, gets the last word.

Of course there are caveats.  Congress can impeach the President and remove him from office -- if it can muster two-thirds of the Senate to convict.  So it is really the President plus two thirds of the Senate who are supreme.

And, it will be said, Presidents won't take these extreme actions because of the public outcry they would produce.  That is likely true, at least most of the time, as things now stand.  But that is because most people don't believe the President has authority to refuse to obey a court decision, even an incorrect one.  If that changes, so will the cost to the President of refusing to comply.

In sum, I think it extraordinarily unlikely that the framers created a system of executive supremacy (even a system of executive supremacy qualified by impeachment/removal and by the possibility of popular opposition).


Originalism in Zivotofsky v. Kerry
Michael Ramsey

Today's opinion in Zivotofsky v. Kerry found unconstitutional Congress' requirement that U.S. citizens born in Jerusalem be able to have their passports reflect birth in Israel.  (Majority by Justice Kennedy; partial concurrence, partial dissent by Justice Thomas; dissent by Chief Justice Roberts; dissent by Justice Scalia, joined by Roberts and Alito).

Jack Goldsmith at Lawfare thinks the opinion is a significant victory for the executive branch. I'm not so sure; the majority opinion is written narrowly and tightly focused on the President's exclusive recognition power (wrongly, in my view).  

I'll have an invited comment at SCOTUSblog posted shortly.  My brief takeaway is that Justice Thomas' concurrence has the right approach: the President wins because Congress does not have power to establish "United States Policy with Respect to Jerusalem as the Capital of Israel," as the statute's title purports to do (see 116 Stat. 1365).  Deciding U.S. policy with respect to whether or not Jerusalem is part of Israel does not have anything to do with receiving ambassadors, but it is part of the President's diplomatic power.  That power isn't exclusive as to things over which Congress also has power, but here Congress lacks an enumerated power.  Thomas relies on extensive originalist materials in support to this framework (persuasively, in my view).

Justice Scalia's dissent is also originalist but in my view is far too lax in policing Congress' enumerated powers.  He argues that Congress can insist on "Israel" in the passport of a Jerusalem-born citizen because "[t]he birthplace specification promotes the document’s citizenship authenticating function by identifying the bearer, distinguishing people with similar names but different birthplaces from each other, helping authorities uncover identity fraud, and facilitating retrieval of the Government’s citizenship records."  But this is an imagined function; as the title of the provision makes clear, the point is to make a statement, not to facilitate recordkeeping.  And the provision allows but does not require inclusion of "Israel" (at the passport-holder's option), further underscoring that the provision's role is symbolic, not administrative.

The majority opinion by Justice Kennedy ranges over precedent, practice, recent history, and functional needs, but also devotes substantial attention to immediate post-ratification understandings (with a much appreciated cite to my article with Sai Prakash on executive foreign affairs power, albeit to the part Prakash mostly wrote).

At Opinio Juris, there are further comments on the case from Julian Ku, Peter Spiro (who thinks, perhaps optimistically, that the opinion is the end of Curtiss-Wright) and Deborah Pearlstein.

And Josh Blackman has extensive excerpts from the opinions and his commentary here.