06/26/2017

Calvin Terbeek on EPA Originalism
Michael Ramsey

Calvin TerBeek (guest blogging) at the Faculty Lounge: Transportable Originalism. From the introduction:

The Environmental Protection Agency has long been a bete noire of movement conservatives. The story of "The Other Rights Revolution," the title of Jefferson Decker's important new study of conservative public interest litigation groups' attack on the regulatory state, supplies the bulk of the story. But of course dislike of the EPA wasn't limited to conservative lawyers. Tom DeLay would often tell reporters that his time as a suburban Houston bug exterminator led him to view the agency as "the Gestapo," a characterization he held onto until his resignation from the House after being indicted. And the EPA was helpfully offered by Mitt Romney when Rick Perry ran into a mental roadblock at a 2012 Republican presidential debate.

It is not surprising, then, that Politico reports:

What Administrator Scott Pruitt calls his “Back to Basics” agenda would refocus the agency on narrow goals such as cleaning up toxic waste and providing safe drinking water — the kinds of issues that inspired the EPA’s creation in 1970 amid a public outcry about burning rivers and smog-filled skies. But it would abandon the Obama administration’s climate regulations, along with other efforts that Pruitt argues exceed the agency’s legal authority. 

What is interesting is how Pruitt is explaining the changes: "EPA originalism" that will lead to "a restoration of [the EPA's] priorities."

06/25/2017

Greg Weiner on the Role of the Court in the Travel Ban Cases
Michael Ramsey

Greg Weiner at Law and Liberty: Return to Marbury. From the introduction:

The travel ban case is headed to the Supreme Court by way of the once redoubtable Fourth and always activist Ninth Circuits, leaving revisionists to wonder how it might have unfolded had it made its way upward through Judge William H. Pryor’s Eleventh. Pryor’s view of the judicial role exhibits appropriate assertiveness within its sphere and a fitting humility beyond it.

Pryor’s perspective might consequently help advocates of judicial engagement and restraint move beyond one of the central difficulties in their disagreement, which is the tendency to veer into judicial supremacy in the former case and impotence in the latter. The travel ban illustrates one dimension of the problem, which is what happens when a court issues a ruling other branches believe impinges on their authority. Would the Trump Administration be immovably bound by it?

Recently in this space, I argued that constitutional meaning was liquidated by conversation between the branches rather than by the discrete and final view of the courts, with the judiciary considered as the last stop on a temporal line. I stand by that conclusion, but Pryor’s writings provide a subtler and richer account of the judicial role.

The account begins where I erred, which was in a truncated and flawed account of Marbury v. Madison. Using Marbury as an illustration of how presidents and courts once confronted each other more forthrightly, I repeated the strain of scholarship that holds that Chief Justice Marshall willfully misread Article III of the Constitution in order to avoid a confrontation with President Jefferson while manufacturing grounds for establishing the power of judicial review.

06/24/2017

Justice Thomas' Doubts on Qualified Immunity and Regulatory Takings
Michael Ramsey

Concurring in this week's qualified immunity case Ziglar v. Abbasi, Justice Thomas (citing Will Baude) raised a fundamental question about the originalist basis of the doctrine (some quotations and citation omitted):

I write separately …  to note my growing concern with our qualified immunity jurisprudence. The Civil Rights Act of 1871, of which §1985(3) and the more frequently litigated §1983 were originally a part, established causes of action for plaintiffs to seek money damages from Government officers who violated federal law.  Although the Act made no mention of defenses or immunities, “we have read it in harmony with general principles of tort immunities and defenses rather than in derogation of them.” Malley v. Briggs, 475 U. S. 335, 339 (1986) (internal quotation marks omitted). We have done so because “[c]ertain immunities were so well established in 1871 . . . that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U. S. 259, 268 (1993); accord, Briscoe v. LaHue, 460 U. S. 325, 330 (1983). Immunity is thus available under the statute if it was “historically accorded the relevant official” in an analogous situation “at common law,” Imbler v. Pachtman, 424 U. S. 409, 421 (1976), unless the statute provides some reason to think that Congress did not preserve the defense, see Tower v. Glover, 467 U. S. 914, 920 (1984). …

In further elaborating the doctrine of qualified immunity for executive officials, however, we have diverged from the historical inquiry mandated by the statute.  In the decisions following Pierson, we have “completely reformulated qualified immunity along principles not at all embodied in the common law.” Anderson v. Creighton, 483 U. S. 635, 645 (1987) (discussing Harlow v. Fitzgerald, 457 U. S. 800 (1982)). Instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under §1983, we instead grant immunity to any officer whose conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. … We have not attempted to locate that standard in the common law as it existed in 1871, however, and some evidence supports the conclusion that common-law immunity as it existed in 1871 looked quite different from our current doctrine. See generally Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript, at 7–17), online at https://papers.ssrn.com/abstract=2896508 (as last visited June 15, 2017).

Because our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act, we are no longer engaged in “interpret[ing] the intent of Congress in enacting” the Act. Our qualified immunity precedents instead represent precisely the sort of “freewheeling policy choice[s]” that we have previously disclaimed the power to make. Rehberg v. Paulk, 566 U. S. 356, 363 (2012) (internal quotation marks omitted).  

… Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Will Baude has more at Volokh Conspiracy, commenting: 

Now, of course, Thomas is writing only for himself, but I am glad to see somebody on the court asking whether the doctrine of qualified immunity is legally justified in its current form. I have suggested that the answer is probably “no,” but even if the court disagrees and ultimately concludes that the answer is “yes,” I think it would be good for the justices to give some attention to the issue and explain why exactly they think it is justified. (As I discuss in the paper, different members of the court have at times subscribed to three different justifications, though I think each of them is somewhat wanting.)

RELATED:  Justice Thomas also expressed doubts about the originalist foundations of regulutory takings dcotrine (citing my colleague and co-blogger Mike Rappaport) in this week's decision in Murr v. Wisconsin.   From Jonathan Adler at Volokh Conspiracy: Should regulatory takings doctrine be reconsidered from the ground up?  From Justice Thomas' opinion: 

In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions). [ed.: article available here].

SOMEWHAT RELATED:  Also at Volokh Conspiracy from Jonathan Adler:  Justice Gorsuch’s first opinions reveal a confident textualist.  From the introduction:

Associate Justice Neil Gorsuch has now written three opinions — a majority, a partial concurrence and a dissent. All three show the Supreme Court’s newest justice to be a confident, committed textualist with a distinctive writing style — and a justice who is not afraid to challenge his new colleagues. [discussing two opinions from this week plus this earlier one].

It's early to be counting, but Justice Thomas joined all three of these opinions.

06/23/2017

More on the Emoluments Clause
Michael Ramsey

Brianne J. Gorod at Take Care Blog: Because President Trump Has Chosen Not To Go to Congress, Members of Congress Must Go to the Courts. From the introduction:

When the nation’s Founders came together to draft a new national charter, they were profoundly concerned about both corruption of federal officeholders and foreign influence over the nation.  They understood what a threat corruption posed, and they worried that foreign nations might attempt to meddle in America’s affairs, including by giving benefits to the nation’s chief executive to subvert his loyalties. 

In response to those concerns, the Founders included in the Constitution the Foreign Emoluments Clause, which prohibits any person “holding any Office of Profit or Trust under [the United States]” from “accept[ing] . . . any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” without “the consent of the Congress.”  Although there’s been a great deal of talk about this Clause since Donald Trump’s election, there has been much less talk about five of its most important words: “the consent of the Congress.” 

To the Founders, “the consent of the Congress” language was critical.  By requiring federal officeholders to first go to Congress and identify the specific benefits they wished to accept from foreign states, the Founders ensured that an officeholder would not be the sole judge of his own integrity. 

Moreover, and just as important, they also ensured that a federal officeholder’s acceptance of any foreign “Emolument[s]” would be transparent and subject to public examination, thus minimizing the dangers of corruption and influence that the Foreign Emoluments Clause was adopted to prevent.  When Congress was first called upon to exercise this responsibility in 1798, one lawmaker explained its value in this fashion: “[i]f presents were allowed to be received without number, and privately, they might produce an improper effect, by seducing men from an honest attachment for their country, in favor of that which was loading them with favors.”

Also Simon Stern guest blogging at Balkinization: Presents, Emoluments, and Corruption. From the conclusion: 

Although the refrain “we love our customers” has become a banal sentiment that reeks of insincerity, it captures a psychological truth that goes without saying (that’s why its constant repetition makes it sound so insincere). According to Trump’s lawyers, the prohibition on emoluments cannot extend to the sale of goods for “fair market value.” But transactions of that kind, no less than gifts and titles of honor, tend to elicit a sense of gratitude—in fact, such commercial transactions are likelier to have that effect than the patronage of someone who pays you a toll or other fee for performing your official duty. When people get paid for duties performed in office, they tend to regard the money as merely their due, which anyone else would just as readily have paid. But profits from commercial transactions, particularly luxury goods (even if at “fair market value”) do elicit a sense of gratitude, for the obvious reason that the customer might have gone somewhere else. This is especially true when the customer makes a point of patronizing the owner’s hotel “so I can tell the new president, ‘I love your new hotel!’”

That is precisely the state of affairs that the framers sought to prevent, by opting for a term that applies not merely to a small subset of the transactions that might elicit the recipient’s gratitude, but rather to the whole array. Contrary to the DOJ’s contention, “the term ‘Emolument,’ when read harmoniously with the rest of the Clause,” does not have “the natural meaning of the narrower definition of profit arising from an office or employ.” Read alongside the ban on “present[s],” the natural meaning entails a prohibition on the various transactions that induce the recipient to respond with gratitude.

And, from a while back (apologies for missing it earlier), John Mikhail at Balkinzation: "Emolument" in Blackstone's Commentaries.  The central point:

In their white paper on conflicts of interest, Donald Trump’s lawyers claimed that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.”  Since then, other commentators have also defended an “office-related” definition of the term (see, e.g., here, here, and here).

Blackstone does not support such a narrow reading.  Occasionally, he refers to the emoluments of government officials, such as postmasters, civil magistrates, and naval seamen.  But the significance of these public employment contexts must be interpreted cautiously, and on the whole they appear to be exceptional. The majority of Blackstone's usages of "emolument" involve benefits other than government salaries or perquisites.  They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.

So (a) lots of originalism in the emoluments clause debate; but (b) I have not heard any really good response to Seth Barrett Tillman's point that in the immediate post-ratification period key framers appeared to think the clause did not apply to the President.

Also, I think there needs to be a more direct explanation, fro the President's challengers, of why Congress cannot consent by acquiescence, as the Supreme Court held in a different context, in Dames & Moore v. Regan.  Congress knows about the emoluments issue and has not raised any objection -- why is this not enough to show that it is not troubled by the President's action?  (I think the answer is that Congress must act formally and that Dames & Moore was wrongly decided on this ground, but are non-formalists wiling to say that?).

 

06/22/2017

Stephen Sachs: Originalism Without Text
Michael Ramsey

Stephen E. Sachs (Duke University School of Law) has posted Originalism Without Text (Yale Law Journal, forthcoming) on SSRN. Here is the abstract:

Originalism is not about the text. Though the theory is often treated as a way to read the Constitution's words, that conventional view is misleading. A society can be recognizably originalist without any words to interpret: without a written constitution, written statutes, or any writing at all. If texts aren't fundamental to originalism, then originalism isn't fundamentally about texts. Avoiding that error helps us see what originalism generally is about: namely, our present constitutional law, and its dependence on a crucial moment in the past.

06/21/2017

Living Constitutionalism on the Supreme Court’s Website
Mike Rappaport

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred.  That’s disappointing.   

The website adopts many claims that are problematic from an originalist perspective.  Some of these are problematic for their substance.  Others are problematic because their connotations suggest living constitutionalism, even though they might technically be interpreted as accurate.  In both cases, a Supreme Court that was trying to be even handed between originalism and nonoriginalism would have written these claims differently.   

1. First, the website writes:

This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations. 

This claim appears to explicitly endorse a “living Constitution.”  To be sure, the technical claim could be interpreted in a way that an originalist would endorse.  Applying a broad provision such as the Commerce Clause to transactions made over the internet would involve a new situation.  But originalists would typically not describe those as involving a living Constitution.  That term suggests creativity on the part of the justices.

2. Second, the website states that “While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document.”

It is not entirely clear how to interpret this claim, but the language before and after this quote seems to suggest that the Constitution does not explicitly acknowledge judicial review.  This is very misleading.  It is true that the Constitution is not explicit about all forms of judicial review, but it does clearly indicate that there will be judicial review of state laws.  The Supremacy Clause provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The italicized language makes clear that judges are supposed to be enforcing the Constitution against laws enacted by legislatures.  Thus, the principal argument against judicial review – that the power to determine whether a law violated the Constitution in a particular case was not judicial power – is foreclosed by the text of the Constitution.  It is true that the existence of judicial review of a congressional enacted law is not unambiguously addressed by the constitutional text, but once judicial review is allowed at the state level, there is a strong argument that the judicial power includes it at the federal level as well. 

3. A third problem with the website is its claim that

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

This is once again a New Deal Living Constitutionalist vision of both what the Court is supposed to be doing and what Marshall was saying.  Both are in my view mistaken.  The New Deal viewed this quote as endorsing the idea that judges adapt constitutional meaning to changing circumstances and values.  But that was not Marshall’s point.  He was merely saying that the Constitution was a short document that did not have the detail of a code. 

Perhaps I will check back in 6 more years to see whether the Supreme Court has changed the website.  But with a new originalist Justice, isn’t it time to adopt a more neutral description of the Court’s function?

Senator Mike Lee on the ‘Hamilton Effect’
Michael Ramsey

Senator Mike Lee (R-Ut) writing at Politico Magazine: How the ‘Hamilton Effect Distorts the Founders. From the introduction:

Even in an age of declining civic education, a basic understanding of the founding generation thankfully remains part of America’s secular catechism. Over the past decade, the Founding Fathers have even enjoyed a renaissance. Creative storytellers like David McCullough and Lin-Manuel Miranda breathed life into stories we thought we knew. The Obama years birthed a tea party movement that had at its center a restoration of constitutional principles. And now, in the age of Trump, progressives have discovered a strange new respect for the importance of the Constitution’s checks and balances and restraints against majoritarian impulses.

But even with their newfound fashionability, the founders remain widely misunderstood. Names like Washington, Adams, Jefferson, Madison, Franklin, and Hamilton still carry weight, but the ideas they espoused get discarded. Other key figures—individuals whose words and ideas contributed much to the founding—are either relegated to the footnotes or missing altogether from our nation’s popular history.

The familiar narrative many of us were taught as children about our founding—that great men came together to forge a Constitution that set America on its present course—isn’t exactly true. Much of it has been deliberately crafted as a means of justifying our modern political whims. History is, by its nature, about the battle of ideas. The problem comes when we look to history not to understand it or draw inspiration, but to seek out confirmation for our pre-existing beliefs.

Take Alexander Hamilton, a brilliant man who spoke up during the debates over the Constitution as one of the most fervent advocates of a robust national government. Today, he’s embraced by many advocates of Big Government as a kindred spirit—doubtless thanks in large part to Miranda’s smash hit Broadway show, “Hamilton,” which recontextualizes the founder as a hardscrabble immigrant who arrived in New York and, with cunning ambition, worked his way to the top of American society.

06/20/2017

Amicus Brief by Seth Barrett Tillman in the Emoluments Litigation
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump (filed in the United States District Court for the Southern District of New York) on SSRN.  Here is the abstract: 

In the early days of our Republic, many constitutional questions divided Alexander Hamilton on one side from Thomas Jefferson and James Madison on the other. Could Congress charter a bank? Hamilton said yes, and Jefferson said no. Must the Senate consent to the removal of principal officers? Madison said no, and Hamilton (according to most accounts) said yes. Could the President declare neutrality unilaterally? In a series of pseudonymous essays, Hamilton said yes, while Madison said no. In each case, the ultimate decision was made by President George Washington. Through their public and private debates, these three Presidents and Hamilton, another prominent Founder, played central roles in the resolution of critical constitutional questions. For over two centuries, courts have turned to their considered judgment when resolving disputes about the Constitution—even where they disagreed amongst themselves.

These Founders, however, did not dispute the issue before this Court. Plaintiffs’ claim that the Presidential Emoluments Clause and Foreign Emoluments Clause prohibit the President from receiving “anything of value,” whether “monetary or nonmonetary,” from domestic or foreign governments. The words and deeds of Washington, Jefferson, Madison, and Hamilton teach a different lesson.

First, Plaintiffs’ understanding of the Presidential Emoluments Clause cannot be squared with the practices of George Washington, whose conduct helped to define the presidency. In 1793, our first President purchased several plots of government-owned land in the nation’s new capital at a public auction. The auction was managed by federal officers, widely publicized, and these valuable plots were acquired in broad daylight. If Plaintiffs are correct, then Washington openly committed impeachable offenses under the watchful eyes of prominent members of the Founding generation, political opponents, and commercial rivals. This Court should reject Plaintiffs’ novel construction, and instead adopt one consistent with this formative history: the prohibition on the President’s receipt of “emoluments” from domestic governments is limited to “compensation or pecuniary profit derived from a discharge of the duties of the office.” Financial gain arising from private business transactions are not emoluments.

Second, Plaintiffs’ reading of the Foreign Emoluments Clause cannot account for the fact that our Founding-era presidents openly received diplomatic gifts from foreign governments. President Washington received a portrait of King Louis XVI from the French Ambassador to the United States. President Jefferson received a bust of Czar Alexander I. President Madison received two pistols from a revolutionary South American government. Congress’s consent was not sought for any of these gifts. If Plaintiffs are correct, three Presidents central to the American Founding openly committed impeachable offenses, or worse, were ignorant of the Constitution they helped draft and define. This Court should reject Plaintiffs’ argument, and instead follow the example set by these Presidents, as well as that illustrated by Secretary of the Treasury Alexander Hamilton’s 1792 report to the Senate. His report lists all who hold office under the United States, but not the President, implying the latter is not subject to the Foreign Emoluments Clause.

Plaintiffs counter this body of evidence with statements from George Mason and Edmund Randolph, who argued during Virginia’s ratification convention that the Foreign Emoluments Clause applies to the President. This evidence is problematic, however, because under their view—that everyone in the federal government is an “officer”—members of Congress could be impeached. These idiosyncratic views were rejected by the Senate in 1799 following an impeachment trial, and that rejection was ratified by the Supreme Court a century later. Mason and Randolph’s office-related intentions ought not prevail over the understandings and public practices established by Washington, Jefferson, Madison, and Hamilton, particularly where, as here, the views of the former have been considered and actively rejected.

Plaintiffs’ attorneys’ recent publications also cite examples of antebellum Presidents who asked Congress to dispose of diplomatic gifts. This evidence is not persuasive. First, unlike the Washington-era evidence, which was contemporaneous with the Constitution’s ratification, Plaintiffs’ evidence occurred many decades after the Framing. Second, there is no evidence Presidents Jackson, Van Buren, and Tyler were aware of the practices of Washington, Jefferson, and Madison. Third, voluntary surrender by Jackson of disputed presidential powers to Congress is far less probative than Washington’s public refusal to seek consent and Congress’s acquiescence. When considering competing streams of historical precedent in the separation of powers context, courts favor precedents established via open defiance over mere surrender, even if willful.

The most weighty historical evidence demonstrates that the Presidential Emoluments Clause only concerns compensation that is authorized by Congress or authorized by the states in regard to state positions, and that the Foreign Emoluments Clause is inapplicable to the President, because the President does not hold an office . . . under the United States. For these reasons, this Court should reject Plaintiffs’ attempt to redefine long-standing constitutional meaning to meet the purported demands of the moment.

Counsel on the Brief are Professor Josh Blackman (South Texas) & Robert W. Ray, Esq. (Thompson & Knight). 

06/19/2017

Call for Papers: Rehnquist Constitutional Law Center
Michael Ramsey

Via Andrew Coan at the University of Arizona, a call for papers:

National Conference of Constitutional Law Scholars

THE REHNQUIST CENTER is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 16–17, 2018. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

Adrian Vermeule will deliver a keynote address. Distinguished commentators for 2018 include:

Jamal Greene; Aziz Huq; Pamela Karlan; Frank Michelman; Christina Rodriguez; Reva Siegel; and Robin West

All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by September 15, 2017. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to Submit. Selected authors will be notified by October 15, 2017. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.

Please send all submissions or related questions to Andrew Coan(acoan@email.arizona.edu).  For logistical questions please contact Bernadette Wilkinson (bwilkins@email.arizona.edu). The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches.

About the Rehnquist Center:

The William H. Rehnquist Center on the Constitutional Structures of Government was established in 2006 at the University of Arizona James E. Rogers College of Law. The non-partisan center honors the legacy of Chief Justice Rehnquist by encouraging public understanding of the structural constitutional themes that were integral to his jurisprudence: the separation of powers among the three branches of the federal government, the balance of powers between the federal and state governments, and among sovereigns more generally, and judicial independence.

Sam Bray on H.L. Mencken's Constitution
Michael Ramsey

At Volokh Conspiracy, Sam Bray (a new conspirator): H.L. Mencken writes a constitution.  From the introduction:

Tyler Cowen published an interview with Jill Lepore. Cowen is an economist at George Mason University and widely known for his blog Marginal Revolution (a feast for intellectual omnivores). Lepore is a historian at Harvard University and a writer for the New Yorker. It’s a great interview, and Lepore brought up H.L. Mencken’s constitution. What? H.L. Mencken wrote a constitution? As you would expect from Mencken, it’s wickedly funny and wickedly serious. And it has gone almost completely unmentioned in legal scholarship (it’s apparently mentioned in only one law review article).

I’ll give you a few quotes, and then a link so you can read it for yourself. ...

(Here is the link).

06/18/2017

Charles L. Barzun Responds to Kessler & Pozen's "Life Cycle of Legal Theories"
Michael Ramsey

Charles L. Barzun (University of Virginia School of Law) has posted Working for the Weekend: A Response to Kessler & Pozen on SSRN.  Here is the abstract: 

In Working Themselves Impure: A Life Cycle Theory of Legal Theories [ed.: available here], Professors Jeremy Kessler and David Pozen argue that prescriptive legal theories tend to cannibalize themselves over time. Drawing on four case studies (originalism, textualism, popular constitutionalism, and cost-benefit analysis), the authors show how these theories tend to gain popularity and momentum only at the cost of abandoning the theoretical and normative motivations that originally inspired them. This brief Response does not take issue - at least not directly - with the authors’ characterizations of the theories they examine. It instead focuses on the last few pages of their article, where the authors discuss what they take to be their study’s methodological implications. I focus on these methodological suggestions because they deal most directly with a question their study as a whole naturally invites: Is the life-cycle theory likely to be helpful to the lawyer, judge, or legal scholar interested in assessing these theories? I offer some reasons for skepticism on this score.

06/17/2017

Special Counsel Mueller Would Face Big Legal Obstacles in Establishing that President Trump Obstructed the FBI Investigation of General Flynn
Andrew Hyman

It appears that Special Counsel Robert Mueller is exploring whether to launch a full investigation into whether President Donald Trump obstructed an FBI probe into alleged wrongdoing by retired Lieutenant General Michael Flynn, due to statements and actions by Trump after firing Flynn as National Security Advisor several months ago.  Perhaps the biggest obstacle in Mueller's way is that the pardon power includes lesser powers, such as the power to commute sentences, and more pertinently the power to halt prosecution, technically called a nolle prosequi, which presidents have been using since the time of George Washington.  Some of that history is described in a 2017 law review article by law professor Peter Markowitz.  Likewise, according to law professor Akhil Amar, it was recognized as long ago as 1798 that, "The president's greater power to pardon subsumed the lesser power to simply decline prosecution."  The main difference between a nolle prosequi and a full pardon is that the former does not prevent eventual prosecution, whereas the latter does.

As we all know from recent news reports, Trump not only fired Flynn a few months ago, but also fired ex-FBI director James Comey last month, and Comey then testified to Congress that the FBI's Flynn investigation was
separate from the FBI's investigation into Russian interference with the 2016 election. Trump has denied that Comey's lack of leniency toward Flynn was among the reasons why he fired Comey, and Trump has also denied ordering Comey to back off of the Flynn investigation.  Apparently, the investigation of Flynn is focusing on whether he omitted some material when he filled out federal forms, and also whether his company (Flynn Intel Group) engaged in some improper business dealings with Turkey, and perhaps Russia too.

This whole situation raises many issues as to the original meaning of federal regulations (e.g. those involving appointment of a special counsel), the original meaning of statutes (e.g. those involving obstruction of justice), and the original meaning of the Constitution (e.g. the pardon power and the impeachment power). Below, I would just like to make a few more comments about the pardon power and how it relates to obstruction of justice. If the Special Counsel ultimately decides to argue that there was obstruction of justice, it is unlikely that charges would be filed against a sitting president, and the matter would likely go to Congress for consideration of impeachment; Congress would then have broad discretion about how to proceed. But, I think it would be very improper to make such a referral to Congress unless it is possible for the Special Counsel to provide evidence that Trump would have been obstructing justice even if Trump had pardoned Flynn.

One could argue that Gerald Ford "obstructed justice" when he pardoned Richard Nixon, but most everyone agrees that Ford had no corrupt motive. A closer case involved 
Bill Clinton's 2001 pardon of fugitive Marc Rich. Rich's ex-wife, Denise Rich, had made a $450,000 donation to Mr. Clinton's presidential library and more than $100,000 to Mrs. Clinton's Senate campaign. Comey was in charge of the FBI probe into the Rich pardon from 2003 until Comey closed the case in 2005 without action.  If Mueller were to find such a quid pro quo between Trump and Flynn then maybe that would negate the nolle prosequi power, but that would be doubtful given that the pardon power has very few limits (one of which is that the behavior being pardoned must be past behavior rather than future behavior).

According to a Washington Post analysis, "At any point in time, Trump could extricate Flynn from any perceived judicial witch hunt, granting him immunity for any federal crimes." Perhaps the Post has not heard of nolle prosequi.  If Trump did something far less than pardoning Flynn, such as discussing leniency toward Flynn with Comey, then I do not see any problem for Trump, notwithstanding the Post's position that the pardon power must either be used fully or not at all.  Even if Comey's lack of leniency toward Flynn was one of the reasons why Trump fired Comey (which Trump has denied), that would seem well within the President's power, via either the pardon power or the power to hire and fire. A Special Counsel would have to produce substantial evidence of presidential corruption to have any chance of overcoming those presidential powers, and even then it is very doubtful that impeachment can be used to punish use of the pardon power.  It is well-established that that power encompasses lesser powers, such as the lesser power to commute, and (more pertinent here) the lesser power to decline prosecution.

Jessie Allen: Blackstone, Expositor and Censor of Law Both Made and Found
Michael Ramsey

Jessie Allen (University of Pittsburgh - School of Law) has posted Blackstone, Expositor and Censor of Law Both Made and Found (Blackstone and His Critics (Wilfrid Prest and Anthony Page, eds., Hart Publishing, forthcoming) on SSRN.  Here is the abstract:

Jeremy Bentham famously insisted on the separation of law as it is and law as it should be, and criticized his contemporary William Blackstone for mixing up the two. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover preexisting legal meaning. Bentham’s critique of judicial phoniness persists to this day in claims that judges are “politicians in robes” who pick the outcome they desire and rationalize it with doctrinal sophistry. Such skeptical attacks are usually met with attempts to defend doctrinal interpretation as a partial or occasional limit on judicial policy making. But this essay takes a different approach. I view the judicial performance of legal interpretation described in Blackstone’s Commentaries as a kind of ritual in which Blackstone participates. 

This response might seem to prove Bentham’s point. In the mainstream modern view, ritual is quintessentially false and irrational - an empty ceremony that distracts us from reality. But there is another way to think of ritual. On this account, ritual’s fictional performance is neither deceptive nor delusional. Rather, ritual practitioners act as if their ritual world is real, while recognizing the gap between ritual order and a chaotic, messy world. In my reading, Blackstone’s Commentaries describes an ambiguous ritual of judicial discovery, in which judges act as if they are finding objectively determined outcomes, while they - and we - understand and acknowledge that subjective creativity is involved in producing those results. 

Ritual is often associated with maintaining traditional social structures, and in the U S today Blackstone continues to be claimed by conservative “originalists” who treat the Commentaries as an authoritative guide to American law at the time of the country’s founding. But, while ritual cannot finally resolve real social conflicts, it need not always preserve a static social reality. The essay closes with an analysis of the judicial technique in Hively v. Ivy Tech Community College of Indiana, a recent U.S. federal appeals court decision that deployed the ritual of judicial discovery to expand protection for the rights of LGBT Americans.

(Via Larry Solum at Legal Theory Blog).

06/16/2017

Derek Black: The Constitutional Compromise to Guarantee Education
Michael Ramsey

Derek W. Black (University of South Carolina - School of Law) has posted The Constitutional Compromise to Guarantee Education (Stanford Law Review, forthcoming) on SSRN. Here is the abstract:

Although the Supreme Court refused to recognize education as a fundamental right in San Antonio v. Rodriguez, the Court in several other cases has emphasized the possibility that the constitution might afford some protection for education. The Court, however, has never explained why the constitution should protect education.

New litigation is attempting to capitalize on the Court's sympathy toward education, but convincing the courts will still require a compelling affirmative constitutional theory. This Article offers that theory, demonstrating that the original intent of the Fourteenth Amendment was to guarantee education as a right of state citizenship. This simple concept has been obscured by the unusually complex ratification of the Amendment. But this article, relying on primary sources, reveals that providing public education was a condition of southern states' readmission to Union and was incorporated into the meaning of the Fourteenth Amendment. As a right of citizenship, this Article also theorizes that the Fourteenth Amendment prohibits states from partisan and other illegitimate manipulations of educational opportunity--some of which have continued to this day.

06/15/2017

Originalism and Carpenter v. United States
Michael Ramsey

At Volokh Conspiracy, Orin Kerr: How should an originalist rule in the Fourth Amendment cell-site case? From the introduction:

The Supreme Court recently agreed to hear Carpenter v. United States, a case on whether the Fourth Amendment protects historical cell-site records. In this post, I want to focus on a small but potentially important part of the Carpenter litigation: How should an originalist Justice vote in the case? There are many different flavors of originalism, of course, and originalist arguments often can be used to argue for different outcomes. But in this post I want to discuss one originalist argument that I think is significant. I’ll then ask readers to weigh in on it.

Let’s start with the obvious: The Framers could not have imagined a world of cell-site records. And the original public meaning of the Fourth Amendment is open to a wide range of interpretations at different levels of generality. With that said, the text of the Fourth Amendment does have an important clue about what the Fourth Amendment was originally understood to mean that might be important to the Carpenter case.

Here’s the opening text of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]

As Justice Antonin Scalia emphasized in his concurrence in Minnesota v. Carter, the word “their” can be understood as important in historical context. It signals that to assert a Fourth Amendment violation, a person’s own self, houses, papers or effects must be unreasonably searched or seized.

[extensive analysis follows]

Sounds right to me (as an original textualist matter).  My only hesitation is whether a Scalia-inspired originalist would be inclined to look at the bigger picture to assess whether a ruling for the government would lead to a general level of privacy and security from search inconsistent with the general level of the founding.  This is the approach that Scalia (but not Thomas) took -- somewhat controversially among originalists -- in the Kyllo case (thermal imaging), and that Scalia went along with in the Riley case (search of cell phone incident to arrest).

06/14/2017

Adrian Vermeule Argues that Scalia’s Morrison v. Olson Dissent is Now the Prevailing Law
Michael Ramsey

Adrian Vermeule at Lawfare: Morrison v. Olson Is Bad Law.  From the introduction:

I've noticed, in a few recent discussions, rather uncritical reliance on the majority opinion in Morrison v. Olson (1988)in support of a claim (quite hypothetical) that Congress could, if it spoke with sufficient clarity, subject President Trump to potential criminal liability for obstruction of justice.

... In anything but the most nominal sense, Morrison is probably no longer good law. Indeed, the best understanding is that it has long since become anticanonical.

I lack the time to substantiate this claim in the detail it deserves, but when the Ethics in Government Act and its Independent Counsel mechanism were allowed to lapse without re-enactment in 1999, no mere policy judgment was at work. Instead a bipartisan judgment had formed that the Independent Counsel was a kind of constitutional Frankenstein's monster, which ought to be shoved firmly back into the ice from which it was initially untombed. As Linda Greenhouse explained in a 1998 article:

It is telling that Democrats, who once praised the Supreme Court's 1988 decision upholding the law in the face of a constitutional attack by the Reagan Administration, find an eerie prescience in Justice Antonin Scalia's impassioned and solitary dissenting opinion. After 10 years of mouldering on law library shelves, the Scalia dissent in Morrison v. Olson is being cited and passed around in liberal circles like samizdat.

And she quoted Walter Dellinger, who observed that "[t]he parade of horribles envisioned by Justice Scalia is now marching right down Pennsylvania Avenue." Justice Scalia's dissent, of course, was based on constitutional objections; even his parade of horribles was no freestanding policy critique, but a claim that when the constitutional mechanism is deliberately thrown out of kilter, serious institutional damage will predictably occur. ...

For a contrary view, see here from Rick Pildes, also at Lawfare.

06/13/2017

Textualism from Justice Gorsuch
Michael Ramsey

Justice Gorsuch's first opinion (for a unanimous Court in Henson v. Santander Consumer USAis (no surprise)  intensely textualist, reaching the sort of obvious conclusion that an attempt to collect a debt someone owes to me is not an attempt to collect a "debt owed or due to another."   Here is the key passage for textualism -- after an extensive focus on the text:

Faced with so many obstacles in the text and structure of the Act, petitioners ask us to move quickly on to policy. Indeed, from the beginning that is the field on which they seem most eager to pitch battle. Petitioners assert that Congress passed the Act in large measure to add new incentives for independent debt collectors to treat consumers well. In their view, Congress excluded loan originators from the Act’s demands because it thought they already faced sufficient economic and legal incentives to good behavior. But, on petitioners’ account, Congress never had the chance to consider what should be done about those in the business of purchasing defaulted debt. That’s because, petitioners tell us, the “advent” of the market for defaulted debt represents “ ‘one of the most significant changes’” to the debt market generally since the Act’s passage in 1977. Brief for Petitioners 8 (quoting Consumer Financial Protection Bureau, Fair Debt Collection Practices Act: CFPB Annual Report 2014, p. 7 (2014)). Had Congress known this new industry would blossom, they say, it surely would have judged defaulted debt purchasers more like (and in need of the same special rules as) independent debt collectors. Indeed, petitioners contend that no other result would be consistent with the overarching congressional goal of deterring untoward debt collection practices.

All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. See Magwood v. Patterson, 561 U. S. 320, 334 (2010) (“We cannot replace the actual text with speculation as to Congress’ intent”). Indeed, it is quite mistaken to assume, as petitioners would have us, that “whatever” might appear to “further[ ] the statute’s primary objective must be the law.” Rodriguez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (emphasis deleted). Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pursues its [stated] purpose[ ] at all costs.” Id., at 525–526. For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legislature says . . . what it means and means . . . what it says.” Dodd v. United States, 545 U. S. 353, 357 (2005) (internal quotation marks omitted; brackets in original).

Even taken on its own terms, too, the speculation petitioners urge upon us is far from unassailable. After all, is it really impossible to imagine that reasonable legislators might contend both ways on the question whether defaulted debt purchasers should be treated more like loan originators than independent debt collection agencies? About whether other existing incentives (in the form of common law duties, other statutory and regulatory obligations, economic incentives, or otherwise) suffice to deter debt purchasers from engaging in certain undesirable collection activities? Couldn’t a reasonable legislator endorsing the Act as written wonder whether a large financial institution like Santander is any more or less likely to engage in abusive conduct than another large financial institution like CitiFinancial Auto? Especially where (as here) the institution says that its primary business is loan origination and not the purchase of defaulted debt? We do not profess sure answers to any of these questions, but observe only that the parties and their amici manage to present many and colorable arguments both ways on them all, a fact that suggests to us for certain but one thing: that these are matters for Congress, not this Court, to resolve.

In the end, reasonable people can disagree with how Congress balanced the various social costs and benefits in this area. We have no difficulty imagining, for example, a statute that applies the Act’s demands to anyone collecting any debts, anyone collecting debts originated by another, or to some other class of persons still. Neither do we doubt that the evolution of the debt collection business might invite reasonable disagreements on whether Congress should reenter the field and alter the judgments it made in the past. After all, it’s hardly unknown for new business models to emerge in response to regulation, and for regulation in turn to address new business models. Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the People’s representatives.

Justice Scalia couldn't have said it better and wouldn't have said it differently.

06/12/2017

Calvin TerBeek Responds to David Bernstein on the Intellectual History of Originalism
Michael Ramsey

Calvin TerBeek (guest blogging) at the Faculty Lounge: Response to David Bernstein. Here is the introduction:

David Bernstein, one of the more prominent libertarian legal scholars, responded to my series of posts on originalism's intellectual history. He wrote:

As an identified "fellow traveler", and someone with a deep interest in the history of various ideological movements within constitutional law, this post paints with far too broad a brush. Just for example, Bork was a self-identified libertarian through the late 1960s with little expressed interest in constitutional law. His views, by his undisputed account, were influenced by Alex Bickel, a liberal who was gradually turning conservative (or at least anti-judicial review) on constitutional issues thanks to what he saw as the excesses of the Warren Court in the 1960s. Neither Bickel's evolution nor Bork's took place in response to Brown, and indeed their mutual evolution on constitutional law took place over a decade later. So what does this have to do with Brown? Note the Bork's first big originalist piece was on freedom of speech, not equal protection. It's also worth noting the the most prominent proto-originalist of the day, Hugo Black, joined the unanimous opinion in Brown. So I think it's well worth studying the influence that the segregationist right had on the development of originalism, but it's far too simplistic to say that Bork's originalism, much less the originalism of his successors, was a direct descendant of segregationist legal theories.

Here is TerBeek’s concluding comment in response to Bernstein’s:

Your overall argument makes the same mistake as O'Neill's history of originalism: a myopic focus on the law reviews and books by law professors as if these can be divorced from the larger political ecosystem. What is more, I never claimed that Bork's thinking was a "direct descendant" of segregationist rhetoric and thinking. The claim was more modest: that proto-originalism, constitutional conservatism, and movement conservatism all showed common narratives and through lines that should be explored further (and something originalists have to date ignored).

Thanks again for your comment, and I agree this is an important discussion.

06/11/2017

Greg Weiner on Publius’s Separation of Powers and Separation of Powers Today
Michael Ramsey

Greg Weiner at Law and Liberty: Bringing an End to Weak Sister Constitutionalism.  From the introduction:

The particular genius of Marbury v. Madison was John Marshall’s act of jujitsu. President Jefferson wanted William Marbury kept off the federal bench and let it be known he would defy any Supreme Court order to the contrary, so Marshall delivered that outcome while seizing the larger prize of judicial review. Two centuries on, President Jefferson’s successor Donald Trump is reduced not to defying the Court but rather to tweeting ruefully that the judiciary’s consideration of his travel ban is “slow and political.”

Thus has Marshall won on both ends: Judicial review is entrenched, and judges no longer occupy the posture of constitutional weakness that necessitated the gymnastics in which Marshall engaged to give Jefferson his desired outcome while voiding Section 13 of the Judiciary Act of 1789. No President would dare defy a court order today, much less announce in advance of a case his intent to do so.

This is not a sign of constitutional health.

Further on, from the core of the argument:

The truly weak sister in all this is, as in most contemporary Constitutional matters, the legislature. What is unclear is whether Congress fears the other branches or hides behind them as convenient foils. Delegation to agencies allows Congress to claim credit for policy goals while complaining about policy implementation, while the assumption of judicial supremacy on constitutional questions enables legislators to vote for whatever is politically expedient on the assumption that, in the memorable formulation of the late U.S. Senator Arlen Specter, “the Court will clean it up.”

Compare this to the First Congress, which David P. Currie has called “a continuing constitutional convention.” To be sure, it had to be such in order to fill in the broad outlines of the framing document with governing details. But in early meetings of the legislature, constitutional debates were routine.

They should be again. But the separation of powers, as Publius envisions it, assumes, including with respect to constitutional meaning, that the branches will operate independently and not merely opportunistically—that is, that a Congress will not blindly defer to a President of its own party or vice versa.

In such circumstances, it is more conservative to ascertain the constitution’s meaning in this political, conversational way than by making the judiciary the last stop on the line. To empower the judiciary as the final arbiter of the Constitution’s meaning is to empower abstract reason at discrete moments in time. Burke, by contrast, wrote in the Reflections that “the science of jurisprudence” was “the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns….”

06/10/2017

Robert Black: Redundant Amendments
Michael Ramsey

Robert M. Black (Independent) has posted Redundant Amendments: What the Constitution Says When it Repeats Itself (University of Detroit Mercy Law Review, Vol. 94, No. 2, 2017) on SSRN. Here is the abstract:

We think of constitutional amendments as the mechanism through which the Constitution changes, but some amendments have been at least partially redundant. Their provisions, in other words, would arguably have been implicit in the Constitution before they were enacted. Supporters of the Eleventh Amendment, for instance, surely thought the original Constitution was properly read as including a sovereign immunity principle. Such an amendment poses a unique interpretive challenge: should we follow this understanding of the preexisting Constitution as already having mandated, e.g., sovereign immunity, or not? This Article explores this puzzle both theoretically, by exploring the different legal arguments on each side of the dilemma, and empirically, through case studies of several fully or partially redundant amendments that have been ratified or at least proposed by Congress. This history, then, can provide guidance to anyone thinking of suggesting a new redundant amendment to ensure that its effects align with their intentions.

06/09/2017

Alan Dershowitz on the President, James Comey and Prosecutorial Discretion
Michael Ramsey

At Fox  News, Alan Dershowitz (Harvard):   Comey's statement fails to deliver the smoking gun Democrats craved.

Irrespective of what the Comey statement said, the core constitutional argument is this:

Throughout American history -- from Adams to Jefferson to Lincoln to Roosevelt to Kennedy to Obama -- presidents have directed (not merely requested) the Justice Department to investigate, prosecute (or not prosecute) specific individuals or categories of individuals.

It is only recently that the tradition of an independent Justice Department and FBI has emerged. But traditions, even salutary ones, cannot form the basis of a criminal charge.

It would be far better if our constitution provided for prosecutors who were not part of the executive branch which is under the direction of the president.

In Great Britain, Israel and other democracies that respect the rule of law, the Director of Public Prosecution or the attorney general are law enforcement officials who, by law, are independent of the Prime Minister.

But our constitution makes the attorney general both the chief prosecutor and the chief political adviser to the present on matters of justice and law enforcement.

The president can, as a matter of constitutional law, direct the attorney general, and his subordinate, the Director of the FBI, tell them what to do, whom to prosecute and whom not to prosecute.  Indeed, the president has the constitutional authority to stop the investigation of any person by simply pardoning that person.

I think that's basically right as an original matter: the President has prosecutorial discretion as part of his executive power, and the FBI/Justice Department, being part of the executive branch, is subject to his direction.  Also, arguably that's a bad system, as Professor Dershowitz says; it's not the system here in California or most (all?) other states, where the attorney general is elected independently.  But it is the Constitution's system.

There may be two complicating questions, although I don't think they are implicated in the current debate:

(1)  Does the President have power to pardon himself?  If not, and if (as Professor Dershowitz implies) one thinks the prosecutorial discretion power follows a fortiori from the pardon power, would that mean the analysis is different if the President himself were the target?

(2) Does Congress have power to eliminate prosecutorial discretion by statute,especially as to a class of people such as the President or the President's close associates?

I think one more point is important and missing in Professor Dershowitz's analysis.  The Constitution's system is that the check on the President comes not from an independent prosecutor but from Congress' impeachment power.  It's not illegal or unconstitutional for the President to cut off an investigation by the executive branch.  But that does not mean the President is unchecked.  If Congress thinks that a weighty misdeed has been committed, it can act.  And if Congress concludes that nothing of that magnitude has occurred, that should be an end to the matter.  The Constitution, for better or worse, commits the question not to an independent prosecutor but to Congress.

06/08/2017

Rebecca Zietlow: James Ashley, the Great Strategist of the Thirteenth Amendment
Michael Ramsey

Rebecca Zietlow (University of Toledo College of Law) has posted James Ashley, the Great Strategist of the Thirteenth Amendment (Georgetown Journal of Law & Public Policy, Vol. 15, No. 265, 2017) on SSRN. Here is the abstract:

Although little known outside a small group of historians, James Ashley, a Republican Congressman from Ohio, played a crucial role in the passage of the Thirteenth Amendment to the Constitution. This article details the history of Ashley's political life and his strategies for ending slavery in the United States. At the side of President Abraham Lincoln, Ashley led the lobbying effort to convince wavering members of the House of Representatives to vote in favor of the Amendment. If it had not been for Ashley's calculated strategy to push the Amendment through the House, the Amendment might very well have failed. Ashley's political activity and speeches also lend support to arguments that the original meaning of the Thirteenth Amendment was more than simply the end of slavery and involuntary servitude in our country and illustrate that the Amendment provided a broader source of liberty and equality rights that animated Ashley and his Reconstruction colleagues at the time of passage. Ashley is featured in the author's forthcoming book, "The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction," to be published by Cambridge University Press.

06/07/2017

Original Methods Originalism Part III: The Minimization of the Construction Zone Thesis
Mike Rappaport

In this third post on Original Methods Originalism, I want to conclude by explaining how original methods has the potential for signficantly limiting the discretion that judges exercise under an originalist approach.

One of the key issues in recent originalist theory involves the distinction between interpretation and construction.  For my purposes, it is not the distinction between interpretation and construction, but the distinction between interpretation and the construction zone that is important.  Interpretation involves the process for determining the actual meaning of a constitutional provision.  After applying the interpretive process, it is possible that the original meaning may not decide the relevant matter at hand.  In those cases, the original meaning will have run out.  Those cases are described as being in the construction zone, which means that the original meaning cannot fully resolve them and therefore some extra constitutional law or policy is needed to fully resolve them.   (To be clear, the original meaning will constrain the result reached by a judge, but it will still leave matters that are not resolved by the original meaning.)

In the academy today, there are three positions on the size of the construction zone.  First, there is the position of Randy Barnett and Larry Solum, who appear to believe in a moderately sized construction zone.  Under their view, many issues are resolved by the original meaning, but many questions are not.  (Note that Barnett and Solum do not describe the size of their construction zone as moderate – that is my characterization.)

Second, there is the position of Jack Balkin, who believes in an extremely large construction zone (again my characterization).  Balkin achieves this by adopting a very thin account of the meaning of constitutional provisions.  This large construction zone allows Balkin to attempt to reconcile originalism and living constitutionalism.

Third, there is the position of Original Methods Originalism, which believes the construction zone is quite small, if it exists at all.  Under this view, the construction zone might be empty or, if there are some issues within it, they are relatively small ones, involving the borders of vague provisions.  The minimization of the construction zone is important, because it indicates that the original meaning of the Constitution is an important constraint and that other approaches, such as Balkin’s, are inconsistent with the Constitution’s original meaning.

But how could the construction zone be so small?  The size of the construction zone turns on what words the Constitution uses and the interpretive rules that are properly applied to it.  If the Constitution uses vague terms, then there will be a greater construction zone.  If it uses more precise terms, the zone will be smaller.  Similarly, if the Constitution assumes powerful interpretive rules for resolving uncertainty, the construction zone will be smaller.

Under original methods, the Constitution employs technical legal terms which have a much richer content than ordinary language.  Consequently, there is less uncertainty.  For example, the Sixth Amendment right of a criminal defendant to confront the witnesses against him will have an uncertain meaning if it is understood in ordinary language, but a more precise meaning if it is thought to adopt the common law understanding of that right.

Original methods also employs an interpretive rule that eliminates much discretion – the 51/49 rule that we believe was applied at the time of the Framing.  Under this rule, an interpreter would decide close cases by selecting the interpretation that was better supported by the evidence, even if it was only by a little.  Consequently, the close case could be decided by legal methods and therefore would not be in the construction zone.

The main type of question that might reside in the construction zone under original methods involves what we call totally vague provisions, such as the term “tall,” which has no precise cut off if used to describe a tall man.   While there are some methods for resolving such terms, they may not always apply.  But even then, the construction zone would be limited to resolving borderline cases such as deciding whether a man who is 5’11” is tall.  It would not allow one to say a man of 5’8” is tall.

No one has yet persuasively shown that the original meaning of a constitutional term is totally vague and cannot be resolved by an interpretive rule.  But even if some such cases exist, the construction zone would be relatively small.

William Baude: The Court, or the Constitution?
Michael Ramsey

William Baude  (University of Chicago - Law School) has posted The Court, or the Constitution? (Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (Cambridge University Press, forthcoming) on SSRN.  Here is the abstract

Two of the great recurring questions in constitutional law are the authority of the Supreme Court and the proper method for interpreting the Constitution. Larry Alexander has, of course, written important work on both questions. And on each he takes a hard-nosed but somewhat unfashionable position: He maintains that the Supreme Court has supreme interpretive authority to which others should defer, and also that the Constitution is controlled by its original meaning. But one of these positions is, and must be, wrong.

06/06/2017

Original Methods Originalism Part II: The Convergence Thesis and the Language of the Law Thesis
Mike Rappaport

In my last post I discussed the basic idea of original methods originalism and the different versions of that interpretive approach.  Here I want to note a very significant implication of Original Methods Originalism: the possible convergence of original intent and original public meaning.  I then want to discuss another aspect of original methods – the view that the Constitution is written in the language of the law and therefore should be interpreted as a legal document.

The Convergence Thesis

The different versions of original methods discussed in my prior post also have important implications for how originalism is conducted.  For many years, there has been a significant theoretical disagreement between the original public meaning and original intent approaches.  After all, they look for different things (public meaning versus intent).  Original methods, however, may cause this theoretical difference to evaporate.  This would be a significant result, as it would unify the approaches, leading to a convergence of original public meaning and original intent (as well as originalist positivism, if it also convergences, as we believe).

The reason that original public meaning and original intent converge is that they both ask the interpreter to apply the interpretive rules that would be conventionally applied to documents of that kind.  Under original public meaning, those rules would be applied by a knowledgeable and reasonable speaker.  Under original intent, a group of authors would have expected and intended those rules to be applied to their language.

The Language of the Law Thesis

So far, in describing original methods I have merely said that interpreters should apply the original interpretive rules – the interpretive rules that would have been deemed applicable to a document of that kind.  Here, though, there is an important sub-thesis that affects what interpretive rules are applicable.

The language of the law thesis holds that the Constitution was written in the language of the law – the technical language that lawyers use in communicating about the law.  That language is an overlay on ordinary English – adding a large number of technical terms and a set of legal interpretive rules (that are either part of the language or the context of the communication).  Thus, if one accepts that the Constitution is written in the language of the law, then one should apply the legal interpretive rules that were applicable to it.  This includes a host of legal interpretive rules, such as the rule of lenity, the rule that repeals are disfavored, the rule about how to interpret preambles, and the absurdity rule.  It also includes many legal or technical terms that are not part of ordinary language.

The language of the law thesis stands in opposition to the ordinary language view – that the Constitution is written in ordinary language.  Under this approach, it is difficult to interpret terms in the Constitution as being technical, especially terms that have both a technical and ordinary meaning.  In my view, this view is inconsistent with how originalist scholars practice originalism, since such scholars often seek legal or technical meanings.  Under the ordinary language view, legal interpretive rules would also not be employed.

The Legal Basis for Withdrawing from the Paris Agreement
Michael Ramsey

The President last week announced U.S. withdrawal from the Paris Agreement on climate change, but (so far as I know) he has not explained the legal basis of his action.  Expanding on my prior post on the withdrawal, I think there are five possible bases, discussed below.  (To avoid suspense, my preference is the last one: declaring the U.S. ratification of the agreement unconstitutional because Senate advice and consent was not obtained).

(1)  The President can withdraw from the Agreement according to its terms.  The President likely can withdraw even from treaties in accordance with their terms.  No provision of the Constitution says otherwise, and the power to execute the laws and conduct foreign relations appears to include it.  The Bush Administration unilaterally withdrew from at least two major ratified treaties (the Anti-Ballistic Missile Treaty and the ICJ Optional Protocol) in accordance with their terms, without major constitutional objection.  Moreover, the main counterargument for treaties – that they are part of the supreme law of the land and so withdrawal involves a lawmaking function – doesn’t apply to the Paris Agreement, which isn’t a treaty and so isn't part of supreme law.

The problem, of course, is that the terms of the Agreement (Art. 28) preclude notice of withdrawal for three years after its effective date, and only after one year's notice.  The President appears to understand the withdrawal to be effective immediately, or at least that the United States will immediately stop complying with the Agreement.  But so long as the United States is part of the Agreement it has to comply, even if it intends eventually to withdraw (that's the point of notice requirements and provisions on delayed withdrawal:  to obligate continued compliance pending withdrawal).  

Another suggestion is that the President could withdraw from a related treaty, the UN Framework Convention on Climate Change, which -- according to Article 28.3 of the Agreement -- would also have the effect of withdrawing from the Agreement.  But the President has not said he is withdrawing from the Convention, and withdrawal would have implications well beyond the Agreement.

(2)  The President could claim power to abrogate all international agreements irrespective of their terms, as part of his executive power over foreign affairs.  The Bush administration appeared to claim this power, at least as a theoretical matter, but did not follow through in practice.  As I wrote at the time (93 Georgetown Law Journal 1213 (2005), and later in The Constitution's Text in Foreign Affairs), I do not think the Constitution gives the President this power, at least as to treaties, because the President must take care that the laws are faithfully executed.  While withdrawing from an agreement in accordance with its terms is faithfully executing it, abrogating an agreement in violation of its terms is not.

(3)  The President could claim power to abrogate executive agreements but not treaties.  This is a stronger argument than (2) because executive agreements (such as the Paris Agreement) are not part of the supreme law of the land under Article VI.  But abrogation of a binding executive agreement still involves a violation of international law.  From international law’s perspective, a binding agreement entails the customary legal obligation of pacta sunt servanda irrespective of how it is approved under domestic law.  So the President would have to claim constitutional authority to violate customary international law.  Whether the President has this constitutional power is sharply debated even among originalist-oriented scholars.

(4)  The President could argue that the Paris Agreement is nonbinding.  If it is not binding, it seems straightforward that the President’s power over foreign affairs includes the power not to comply.  No legal obligation is involved, so no limit on this power could be argued from either Article VI or the take care clause. (This is the case, for example, for the nonbinding Joint Comprehensive Plan of Action regarding Iran's nuclear facilities.) However, the Paris Agreement appears to be a binding agreement, on the basis of its terms, its formality and the way it has been treated by other countries.  True, some parts of it are phrased in aspirational or discretionary ways, and those parts are likely nonbinding.  The President thus could decide not to comply with them.  But not complying with certain parts of the Agreement is different from withdrawing altogether.  So I do not think this argument is plausible given the way the President appears to understand his action.

(5)  The President could argue that the Agreement is unconstitutional.  This is my preferred approach.  The Agreement was not approved by the Senate in accordance with Article II, Section 2.  (It also was not approved or acquiesced in by Congress as a whole, if one thinks that could be a substitute.).  While the President has constitutional power to enter into low-level diplomatic arrangements on his own authority, the President does not have unilateral power to undertake material long-term obligations on behalf of the United States.  The framers very clearly explained that the advice and consent of the Senate would be a check on any such presidential agreement-making.  As a result, President Obama’s act of ratifying the Agreement without Senate advice and consent violated the Constitution.  (I discuss this argument and counterarguments more fully here (Part II.B)).

One might argue then that the U.S. ratification was defective and the United States never actually became part of the agreement.  But international law generally does not accept defects in domestic approval as defenses to violations of international agreements, unless the defects are manifest.  (Otherwise, the opportunity for sand-bagging would be too great).  Arguments justifying the President bypassing the Senate were made at the time, so it might be hard to say the defect in approval was so manifest to other parties to the Agreement that the United States was never truly bound.

However, I don’t think that matters for U.S. domestic purposes.  Even if the United States is part of the Agreement as a matter of international law, the President’s first duty is to the U.S. Constitution.  If the Constitution does not permit the United States to be part of the Agreement without the Senate’s advice and consent, then (under U.S. law) the United States cannot be part of the Agreement without the Senate’s advice and consent, regardless of what international law might say on the matter.  And the President’s duty, arising from both the take care clause and the presidential oath, is to uphold and faithfully execute the Constitution.  As a result, the President has authority to withdraw the United States from the Agreement, even in violation of its terms, in order to comply with the Constitution.

Some commentators have suggested that pursuant to this argument the President should submit the Agreement to the Senate for advice and consent.  I don’t think that’s required, or even helpful.  The President has constitutional power to decide not to submit signed agreements to the Senate for approval, if the President decides the agreement is a bad idea for policy reasons or the President decides Senate approval won’t be forthcoming.  Presidents in the past have routinely made this decision  (President Obama, for example, signed but did not submit the U.N. Arms Trade Treaty).  Nothing in the Constitution requires otherwise.  The Constitution only says that the Senate must consent before ratification; if the President decides against ratification the Senate has no role in that decision.

Relying on the Agreement’s unconstitutional method of ratification is not just the best legal justification of the President’s action.  It has several associated benefits.  First, it restores executive practice to the requirements of the Constitution’s text.  And second, it constrains rather than expands executive power (unlike, for example, a broader claim that the President can abrogate properly ratified treaties or can generally violate international law).

06/05/2017

Alex Loomis on Immigration and the Define and Punish Clause
Michael Ramsey

Alex Loomis emails:
 
[Regarding] your posts about the define and punish clause and Congress’s power to regulate immigration. I don’t think the answer to these issues lies in the phrase “law of nations”; it probably comes down to “define.”

As I argue in this year's Harvard Journal of Law and Public Policy (you had a post about my much rougher draft last year), the word “define” imbues Congress with significant creative powers. Even if failure to restrict immigration did not violate the law of nations in 1788 and does not violate international law now, Congress’s power to define offenses against the law of nations would allow it to depart from extant international law. I think the text of the Constitution, early Constitutional understanding, and Supreme Court precedent all point plainly in this direction. (My draft earlier argued that Congress could use the clause to change customary international law; I dropped that argument because that seemed to get into legislative motive and had less support; my view now is just that no state has to agree with U.S. views on international law.)
 
The Neutrality Act of 1794, which was passed pursuant to the define and punish clause, penalized acts that did not violate the law of nations. Further, the Neutrality Act was defended in part under a state responsibility theory: states have a generic obligation to prevent their people from doing harm to other states. It wouldn’t be hard to fit restrictions on migration under that theory. Finally, some Federalists defended the Alien Acts, an early set of immigration statutes of sorts, as a valid exercise of the define and punish power, though they mostly meant that Congress could use the define and punish clause as a measure to punish another state at war with the United States (see pp. 443–45 n.136 of my paper).
 
That said, the biggest problem with the define-and-punish theory is that, to my knowledge, Congress has never taken the position that failure to restrict excessive migration violates international law. And textually, it would be difficult to justify defending an exercise of the define and punish clause if Congress acknowledged there was no nexus to an extant international legal obligation. As far as I know, that has never happened. 
 
Focusing on the word “define” also (1) responds effectively to Rob Natelson’s concern about other states’ decisions shifting Article I powers, and (2) distinguishes between the define and punish clause’s reference to the “law of nations” and the Seventh Amendment’s reference to “common law" because the Amendment does not give courts or Congress the power to "define" common law. 

Original Methods Originalism Part I: The Basic Idea and the Different Versions
Mike Rappaport

One approach to constitutional originalism is called original methods originalism, which John McGinnis and I have developed.  While the theory has received significant attention, the overall relationship of the different parts of the theory have not always been understood.  Therefore, I thought it would be useful in a couple of posts to discuss various aspects of the theory and how they relate.

In these posts, I will explore 5 different aspects of original methods originalism: 1) the basic idea, 2) the different versions of original methods, 3) the convergence thesis, 4) the language of the law thesis, and 5) the minimization of the construction zone thesis.

The Basic Idea

The basic idea of the theory is that the original meaning of the Constitution requires not merely reference to original word meanings and the syntactic or grammar rules at the time of the Constitution, but also to the interpretive rules followed at the time.  Interpretive rules are the rules that govern how language is interpreted.

The reason the interpretive rules are important is that they help to determine how provisions are interpreted.  To see their importance, imagine that at the time of the Constitution, an interpretive rule existed as to how to interpret a list of rights, such as the Bill of Rights.  Under this interpretive rule, imagine that such a list was construed as illustrative, not as exhaustive – that is, other unenumerated rights might have been protected as well.  (I am not claiming here that such a rule existed or did not exist.  This is a hypothetical.)

If such a rule existed, then the authors of a bill of rights would have written it with the understanding that it would be understood as illustrative.  Readers at the time would also have understood it that way.  Then, if judges interpreted the bill to be exhaustive, then would not be following the meaning that the authors conveyed and readers would have understood.  They would be departed from the original meaning.  The same would be true if the interpretive rule required that the list be treated as exhaustive and the judge read it as illustrative.

The Different Versions of Original Methods

While this is the core idea of original methods, it is important to emphasize that there are different versions of original methods.  In our view, original methods is not really a stand alone theory of interpretation, but instead is the result of applying other interpretive approaches: original intent and original public meaning (and positivist originalism).  We believe that each of these views leads to original methods.

The original public meaning view holds that the language of the Constitution should be understood as a reasonable and informed person at the time would have interpreted it.  But if the authors and readers would have applied the interpretive rules to language, then of course the original public meaning would require that the original interpretive rules be applied.

A similar argument, but one that is more complicated, applies to original intent.  Under the original intent approach, the meaning of language is the meaning intended by the authors of the language.  A significant problem for the original intent approach is the problem of aggregation: what does one do if the multiple authors of a law have different intents?  This is a big problem for the Constitution, which was enacted by thousands of authors in multiple states at different times.

The problem of aggregation, however, is solved if the authors intended to follow the conventional interpretive rules.  Under these rules, one does not aggregate intents; one simply applies the interpretive rules.

According to original methods, the original intent of the authors of the Constitution would not have been to follow their own individual intents, but instead to follow the conventional interpretive rules.  After all, if one asked an individual in a particular ratification convention (consisting let’s say of 500 people), how he expected and intended the Constitution to be interpreted, he would not say that it should be interpreted based on his intent or even based on the multiple intents of different people in the different ratification conventions, which were not really knowable.  He would likely say that he expected and intended it to be interpreted based on the conventional interpretive rules.

Thus, the original intent approach also leads to a version of original methods, which interprets based on the original interpretive rules.

(I should also add that positivist originalism, which treats the Constitution as law and argues it should be interpreted in accord with the law as it existed at the time of its enactment, also leads to original methods.  But I will leave that argument for another time.)

More from Calvin TerBeek on the Intellectual History of Originalism
Michael Ramsey

Calvin TerBeek (guest blogging) at the Faculty Lounge: Originalism, the Colorblind Constitution, and Some Preliminary Thoughts on Where the Debate Should Go From Here.  From the introduction:

In an earlier post titled "Was Originalism Born in Sin?," I sketched out some evidence suggesting Bork's proto-originalism, as found in his oft-cited 1971 Indiana Law Journal article, was informed by anti-Brown narratives, especially those focusing on the "original intent" of the Fourteenth Amendment’s framers, and the simultaneous disparagement of social science. These narratives were initially voiced by, among others, virulently racist Mississippi Senator James Eastland, massive resistance columnist James Kilpatrick, and Barry Goldwater's ghostwritten The Conscience of a Conservative (penned by National Review editor L. Brent Bozell). The upshot was that originalism's intellectual history, given that it is an important idea, is worth studying and it is a history originalists should grapple with (but largely have not).

One interesting critique of my argument, explicitly made by Steven Sachs, and implicitly by Rick Garnett, was that the genetic fallacy posed problems vis-a-vis any real bite to my argument: that is, the current content of originalism cannot or should not be impugned by its unsavory origins. I am not convinced by this critique, and set forth some reasons why here. Indeed, it seems lost on originalists and their fellow ideological travelers that their critiques of the Progressive Era and “living constitutionalism” highlight the racist views held by many of these reformers at that time (with the odd implication that originalists and libertarians are the heirs to racial liberalism today).  

At all events, it remains the case that no one has disputed the through lines from the segregationist/states' rights rhetoric to Bork's academic argument for original and framers' intent. Furthermore, another widely-held originalist argument, the colorblind constitution, is not subject to the genetic fallacy objection. Political scientists have demonstrated that the package of ideas making up colorblind constitutionalism, a view held by many originalists today, were repackaged by the very same racial conservatives who had previously spoken out against desegregation. It is also another instance of originalists failing to grapple with their own history.

A short delineation of this transformation and why it has significant implications for the current theoretical project of originalism follows below.  ...

06/04/2017

Stephen Griffin: Analyzing War Powers After 9/11
Michael Ramsey

Stephen M. Griffin (Tulane University Law School) has posted Analyzing War Powers After 9/11 (64 Drake Law Review 961 (2016)) on SSRN.  Here is the abstract:

In this essay, I use the perspective advanced in my book Long Wars and the Constitution to analyze some of the war powers issues that have arisen since the 9/11 attacks. I first discuss the constitutionality of the Obama Administration’s military operation against ISIS. In addition, I consider to what extent the Obama Administration’s approach was different from that taken by the Bush Administration with respect to the “9/11 War.” Finally, I offer some general thoughts on the proper way to analyze checks and balances with respect to war powers in a post-9/11 world.

(My thoughts on the Obama administration's approach to war powers are here).

06/03/2017

Mark Pulliam on the Imperial Presidency
Michael Ramsey

At Liberty Law Bog, Mark Pulliam: Taming the Imperial Presidency (describing a new book of essays from the American Enterprise Institute).

[T]he latest scholarly examination of executive power, The Imperial Presidency and the Constitution [ed.: Rowman & Littlefield Publishers, 2017], emerges from a 2015 conference hosted by the American Enterprise Institute. The book, coedited by AEI’s Gary Schmitt, and Claremont McKenna’s Joseph M. Bessette and Andrew E. Busch, collects seven essays by a variety of prominent experts, including Ralph Rossum, James Ceaser, and Adam White.

White describes the historical evolution of cabinet departments overseen directly by the President to early “independent” regulatory commissions (such as the Steamboat Inspection Service, the Interstate Commerce Commission, and the Federal Trade Commission), to the “energetic” executive branch agencies we are most familiar with today. Surprisingly, the major shift in the power and scope of federal agencies—made possible by Congress’ broad delegation of power to them—occurred not during the New Deal, but during a Republican presidency, that of Richard Nixon, and that power and scope continued to wax under succeeding administrations (both liberal and conservative).

In one of the ironies of history, White depicts then-professor Antonin Scalia advocating, in 1981, that administrative agencies flex their muscle to (in White’s words) “pursue Reaganite ends by Rooseveltian means.” The Chevron doctrine was part of the Reagan administration’s reassertion of presidential power over the administrative state—to prevent excessive interference by liberal judges on the D.C. Circuit. As they say, be careful what you wish for, because you might get it. Alas, the presidency changes hands, and with it the awesome power over the myriad regulatory agencies. The concentration of executive control over the administrative state increased during the administrations of Bill Clinton and George W. Bush, creating a “perfect storm” for abuse by the Obama administration, which White summarizes.

How can this be fixed? White candidly acknowledges that the “most straightforward way to reduce the administrative state’s power would be for Congress to do the work of taking delegated powers away from the agencies,” but concludes that this is very unlikely. Congress surrendered its regulatory power precisely to avoid accountability for the resulting regulations. Reclaiming its lawmaking prerogatives would require hard work, eating into congressional recesses and limiting opportunities for fundraising and campaigning for re-election. Congress is content with the status quo.

Fortunately, in recent years the Supreme Court has been rethinking the proper degree of deference to agencies’ interpretations of their own regulations. It is encouraging to see conservative scholars confront the reality of the administrative state and Republican Presidents’ role in creating it. White concludes:

Conservatives may have grown too complacent with the executive branch’s assumption of primary control over the administrative state. . . . Perhaps they should reconsider this presumption about the nature of the administrative state, and break the presumed link between the administrative state and the imperial presidency.

Here is the book description from Amazon:

Time and again, in recent years, the charge has been made that sitting presidents have behaved “imperially,” employing authorities that break the bounds of law and the Constitution. It is now an epithet used to describe presidencies of both parties. The Imperial Presidency and the Constitution examines this critical issue from a variety of perspectives: analyzing the president’s role in the administrative state, as commander-in-chief, as occupant of the modern “Bully Pulpit,” and, in separate essays, addressing recent presidents’ relationship with Congress and the Supreme Court. The volume also deepens the discussion by taking a look back at Abraham Lincoln’s expansive use of executive power during the Civil War where the tension between law and necessity were at their most extreme, calling into question the “rule of law” itself. The volume concludes with an examination of how the Constitution’s provision of both “powers and duties” for the president can provide a roadmap for assessing the propriety of executive behavior.

 

06/02/2017

The Paris Climate Accord and Congressional Acquiescence
Andrew Hyman

I agree with Mike Ramsey's recent post saying that U.S. participation in the now-terminated climate agreement was unconstitutional.  I'm not commenting here about whether it was effective or fair, but only about whether it was legal and in particular whether the doctrine of congressional acquiescence could make it so.  In the 1981 case of Dames & Moore v. Regan, SCOTUS said (emphasis added):  

[W]here, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims.

Relying upon congressional acquiescence is kind of a sketchy tactic by a U.S. president, but cases like Dames & Moore suggest it's at least worth mentioning in the present context of the climate change agreement.   And it doesn't work.  The lack of congressional acquiescence is pretty clear from news articles like this one:  Elizabeth Kolbert,  Congress Moves to Sabotage the Paris Climate SummitThe New Yorker (December 4, 2015).  So I don't see any way that the U.S. involvement in the Paris Accord was legal.

It's worth noting that the Trump administration has restarted the licensing process for the long-planned Yucca Mountain nuclear waste repository which was shelved during the Obama administration.  It seems that the U.S. may meet or exceed the goals set by the Paris Accord if the Trump administration succeeds in reviving nuclear power, even if the U.S. is not obliged to do so under the Paris Accord.  Here's hoping.

Original Meaning and General Personal Jurisdiction
Michael Ramsey

In BNSF Railway Co. v. Tyrrell, the Supreme Court earlier this week held that Montana could not claim general personal jurisdiction (that is, the ability to hear claims arising anywhere in the world) over a railroad not incorporated or headquartered in Montana but with extensive operations in the state.  According to the Court (some citations omitted):

Because [federal law] does not authorize state courts to exercise personal jurisdiction over a railroad solely on the ground that the railroad does some business in their States, the Montana courts’ assertion of personal jurisdiction over BNSF here must rest on Mont. Rule Civ. Proc. 4(b)(1), the State’s provision for the exercise of personal jurisdiction over “persons found” in Montana. BNSF does not contest that it is “found within” Montana as the State’s courts comprehend that rule. We therefore inquire whether the Montana courts’ exercise of personal jurisdiction under Montana law comports with the Due Process Clause of the Fourteenth Amendment.

In International Shoe, this Court explained that a state court may exercise personal jurisdiction over an out-of state defendant who has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” 326 U. S., at 316. Elaborating on this guide, we have distinguished between specific or case-linked jurisdiction and general or all-purpose jurisdiction.  [citations omitted] Because neither Nelson nor Tyrrell alleges any injury from work in or related to Montana, only the propriety of general jurisdiction is at issue here. Goodyear and Daimler clarified that “[a] court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” The “paradigm” forums in which a corporate defendant is “at home,” we explained, are the corporation’s place of incorporation and its principal place of business. The exercise of general jurisdiction is not limited to these forums; in an “exceptional case,” a corporate defendant’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that State.” We suggested that Perkins v. Benguet Consol. Mining Co., 342 U. S. 437 (1952), exemplified such a case. In Perkins, war had forced the defendant corporation’s owner to temporarily relocate the enterprise from the Philippines to Ohio. Because Ohio then became “the center of the corporation’s wartime activities,” was proper there …

BNSF, we repeat, is not incorporated in Montana and does not maintain its principal place of business there. Nor is BNSF so heavily engaged in activity in Montana “as to render [it] essentially at home” in that State. As earlier noted, BNSF has over 2,000 miles of railroad track and more than 2,000 employees in Montana. But, as we observed in Daimler, “the general jurisdiction inquiry does not focus solely on the magnitude of the defendant’s in-state contacts.”). Rather, the inquiry “calls for an appraisal of a corporation’s activities in their entirety”; “[a] corporation that operates in many places can scarcely be deemed at home in all of them.” In short, the business BNSF does in Montana is sufficient to subject the railroad to specific personal jurisdiction in that State on claims related to the business it does in Montana. But instate business, we clarified in Daimler and Goodyear, does not suffice to permit the assertion of general jurisdiction over claims like Nelson’s and Tyrrell’s that are unrelated to any activity occurring in Montana.

I find this highly dubious and completely unjustified as an original matter.  To begin, my sense of of "fair play and substantial justice" is not offended.  Montana stated very clearly that if a corporation chooses to do extensive business in Montana it would be subject to suit in Montana for its wrongdoings, whether done in Montana or elsewhere.  BNSF chose to do extensive business in Montana.  Moreover, because BNSF does business in Montana, and because no one doubts that BNSF can be sued in Montana for wrongs committed in Montana, BNSF no doubt has many lawyers capable of defending it in Montana and much experience with Montana litigation.  This does not seem remotely contrary to "fair play," and while "substantial justice" is an essential empty term I don't see how justice is dis-served by have this case litigated in Montana as opposed to some other state, as BNSF is surely able to defend itself in Montana courts.  (There might be particular aspects of particular suits that would make them more appropriately litigated elsewhere, but this would be handled by common law doctrines such as forum non conveiens rather than constitutional limits on jurisdiction.)

Of course, assuming that the due process clause is not just an open-ended delegation to courts to pick their own ideas of "fair play and substantial justice", the key question from an originalist perspective is whether this sort of assertion of jurisdiction was thought fundamentally unfair at the time of the adoption of the due process clause.  Perhaps it was, but I have seen no evidence that it was (there is none in the Court's opinion, nor in the Daimler and Goodyear cases on which the Court principally relies).  Notably, as Justice Scalia explained in Burnham v. Superior Court, in mid-nineteenth-century procedure a state could claim personal jurisdiction over an individual defendant if the individual was merely present in the jurisdiction long enough to be served with notice of the suit.  That procedure seems much more in tension with "fair play and substantial justice" that what BNSF suffered.  If Mr. Burnham -- who had no material connections with California apart from an ill-advised vacation there -- could be sued in California on a claim having no relationship to California just because he was served in California, I cannot imagine what injustice BNSF is complaining about.

In any event, especially given that Montana's claim of jurisdiction does not seem manifestly unfair to BNSF, the burden should be on BNSF to show that it is inconsistent with ratification-era ideas of due process.  (As explained here, I think this would have been Justice Scalia's approach).  True, it's likely a better rule that corporations must be sued in their place of incorporation or principal place of business (or where the wrong occurred) -- among other things, to discourage forum shopping.  But from an originalist perspective the question isn't what rule makes for more efficient litigation, especially since I assume Congress could establish a uniform national rule of personal jurisdiction for businesses engaged in interstate commerce should Congress think interstate corporations were being treated unfairly by the states.

Interestingly, Justice Thomas joined the Court's majority in the BNSF case.  I assume he did so on the basis of precedent, since he did not (as he often does) write separately to suggest reexamining the original meaning in this area.  But that suggests two things about Justice Thomas: (a) he is more willing to rely on precedent than is sometimes said, and (b) he does not seem to have a fully articulated theory of when he fully relies on precedent and when he doesn't.  (In this respect he is no different from others, including Justice Scalia).

06/01/2017

Declaring the Paris Climate Accord Unconstitutional (Updated)
Michael Ramsey

Reports are that the President has decided to withdraw from the 2015 Paris Climate Change Agreement, although it's unclear what form the withdrawal will take.  From Politico

President Donald Trump is planning to pull the United States out of the Paris climate change agreement, a White House official said Wednesday morning — only to have Trump himself revive the suspense less than an hour later.  ...

... Administration officials said they are still sorting out the details of how exactly Trump would withdraw, and one noted that nothing is final until an announcement is made.

One widely discussed legal obstacle is that the Agreement by its terms does not allow a notice of withdrawal for three years. And there is not much doubt that the Agreement (including the no-withdrawal term) is binding on the United States as a matter of international law.  That raises a tricky constitutional question of whether the President can withdraw from the Agreement in violation of international law.

There is another approach, suggested by a number of commentators, that seems preferable to me.  The Paris Agreement is a treaty under the U.S. Constitution because it imposes material binding long-term commitments on the United States.  As a result, it cannot be ratified on behalf of the United States by the President alone (as President Obama purported to do).  As an original matter, the Constitution requires it to be approved through the advice and consent of two-thirds of the Senate prior to ratification; modern practice might allow approval by majorities in both houses of Congress to substitute for Senate consent, but even under modern practice there is no precedent for unilateral presidential approval of material binding long-term commitments.  (See my discussion of the history of U.S. agreement making here: The Treaty and Its Rivals: Making International Agreements in U.S. Law and Practice).

The principal counterargument is that the Agreement does not actually impose material binding long-term commitments on the United States because many of its key provisions are nonbinding.  I considered this argument in a series of blog posts a while back, and at greater length in this article:  Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements.  The short of it is that I think the Agreement does impose material binding long-term commitments on the United States despite the fact that much of it is nonbinding.  Enough of it is binding that it is beyond unilateral presidential power.  As I put it in Evading the Treaty Power (11 FIU Law Review at 115-116, in summer 2016 [extensive footnotes omitted]):

First, it is not clear that the Agreement’s specific binding provisions are sufficiently minor to justify the use of an executive agreement rather than a treaty. For example, Article 4.2 states that “[e]ach Party shall prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures with the aim of achieving the objectives of such contributions.” Thus the United States must identify target emissions goals (“nationally determined contributions”) and must take some (unspecified) mitigation measures (even though the emissions goals themselves are nonbinding). If a future President or Congress decides the target goals process is not worthwhile, the process cannot be discontinued without violating a binding obligation (and the United States must remain a party to the Agreement for at least three years, per Article 28).

Second, irrespective of the specific binding commitments, the agreement binds the United States to a general goal of reduced carbon emissions for an extended time, even though the implementation of that goal is left nonbinding. For the future, the United States is not committed to any specific level of emissions, but it is committed to the general policy of reducing emissions. Unlike truly nonbinding agreements, a future President cannot change that policy without violating international law. If a new President thinks global warming is overstated as a threat, or that that emissions reductions will not materially mitigate the threat, the President is not free to articulate or act on that view.

We now have the "future President" I hypothesized, and the arguments being made against him are that the Agreement constrains him from discontinuing the "nationally determined contributions" process or from pulling back from the "general policy of reducing emissions."  But these constraints on the President show that the Agreement is in fact a material binding commitment of the United States, and thus was unconstitutionally approved by unilateral presidential action.

What is the consequence?  If the U.S. ratification of the Agreement was unconstitutional as a matter of domestic law, the President's obligation to uphold the Constitution allows (I would say requires) him to rectify the violation by withdrawing the ratification.  It's true that an immediate withdrawal would violate international law.  But in a choice between violating U.S. constitutional law and violating international law, the President's duty to the Constitution comes first.  Thus the President has a clear path to an immediate withdrawal that does not require broader claims about the President's ability to violate constitutional international agreements.

UPDATE:  Related thoughts from Eugene Kontorovich at Volokh Conspiracy: The U.S. can’t quit the Paris climate agreement, because it never actually joined.  

Two features cut heavily against [the Paris Agreement] being treated as the kind of arrangement that can be entered into by a president on his own authority. First, it has a four-year waiting period for withdrawal, quite unlike traditional executive agreements. Second, it is a large multilateral deal, and the other parties apparently believe it requires domestic ratification. Whatever that means for U.S. constitutional purposes, it does suggest that other countries should hardly protest if Trump merely follows their example to seek domestic ratification.

Some general principles are worth reviewing. In international law, the term “treaty” is one of the many terms for a binding international agreement. Not all agreements that are “treaties” in the international law sense — i.e., that create a binding international obligation — are “Treaties” in the constitutional sense. It is well accepted that there is a class of international agreements that the president can commit the United States to on his own authority, without invoking the treaty process. However, the scope of the “sole executive agreement” (SOE) category is a matter of great dispute.

...

While there are no clear rules about the treaty/executive agreement, the Paris accord has some features, not yet analyzed on this context, that do not follow the pattern of past SOEs. So simply pointing out that there are such things as SOEs does not mean this is one of them, given that it departs from the SOE model in significant ways. ...

FURTHER UPDATE:  The President announced that the U.S. will withdraw from the Agreement.  But I have not been able to determine from media reports or the official statement what the timing or the legal theory is.

05/31/2017

Liberal Originalism and the Impeachment Clause
Michael Ramsey

Neil Buchanan (GW), one of the more stridently partisan bloggers at Dorf on Law, has this post: Another Anti-Impeachment Talking Point Bites the Dust.  Scroll through various criticisms of President Trump, Republicans and conservatives to this passage: 

There are situations in which scholars disagree about whether the "framers' intent" is the proper way to understand a constitutional concept, but this is not one of them.  As an excellent congressional analysis from the Watergate era explains, there is no question that "high crimes and misdemeanors" in the impeachment context was not meant to be co-extensive with the criminal meanings of those words.

Of particular interest is that the framers all seemed to view the phrase as unambiguous, and they treated it as a term of art to reflect its origins in British law.  There was briefly an effort by George Mason to use the word "maladministration," but James Madison objected to that word for being too vague.  Mason then substituted "high crimes and misdemeanors agst. the State" to expand impeachment beyond the two delineated offenses of treason and bribery, and his proposal was adopted.

Trump need not, therefore, have committed treason or have been directly bribed in order to be impeachable.  And such further grounds for impeachment are not limited only to actions for which criminal indictment is immediately appropriate.  Trump, like all presidents, must not "subvert the Constitution," in Mason's words.

I think this is basically right.  (See this article from the Clinton era by Gary McDowell, "High Crimes and Misdemeanors": Recovering the Intentions of the Founders, mainly making a different point but very supportive of the idea that "misdemeanors" means not "minor crimes" but "malfeasances in office.")  [Aside: whether President Trump has actually committed impeachment-level malfeasances in office is a different question and Professor Buchanan does not seem very persuasive to me on this point.]

My main point to highlight here is: Professor Buchanan, who I'm sure is not an originalist, thinks (a) that the original meaning of the impeachment clause is clear; and (b) that we should care about the clear original meaning of the impeachment clause in thinking about what the impeachment clause means today.

I say this not to suggest that Professor Buchanan is being hypocritical, but to suggest that he is being entirely conventional.  It is extremely common in legal argument, including in particular among liberal law professors, to make originalist arguments when they support the conclusion one wants to reach (and to not make originalist argument when they don't).  That in turn suggests that the difference between originalists and conventional liberal legal scholars is that the former think originalist arguments should control all or most of the time, while conventional legal scholars think that they should control some of the time.  (See also my comments on a similar impeachment-related argument by non-originalist Noah Feldman (Harvard)).

This point holds, though, only when particular constitutional clauses are being debated.  When the debate is about originalism as a theoretical matter, the critique of originalism is pitched as much more dramatic.  Using the Constitution's original meaning to guide modern adjudication, it is said, is theoretically incoherent, practically impossible, morally indefensible, or (at best) an approach that can only be undertaken by trained historians.  (These arguments were made so often in the context of Justice Gorsuch's confirmation hearings that I won't both with citations; they are surely familiar to everyone at this point).

But the argument that originalism cannot be a guide to modern interpretation is belied by the fact that conventional liberal legal scholars such as Buchanan and Feldman routinely and unapologetically use originalism to find the meaning of particular constitutional clauses.  Those who argue the impossibility of originalism are not quarreling only with originalists; they are quarreling with convention liberal legal argumentation.