10/02/2014

John McGinnis on Republican Constitutionalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: Constitutional Interpretation in Republican and Mixed Regimes.  From the introduction:

In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods.  This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty.  In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history.   The distinctive interpretative method of republican constitutionalism is originalism:  the meaning chosen by the people when the constitution is passed binds the people at later times.

In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element. Support for a mixed regime can be traced to Aristotle, and, in modern constitutionalism, the aristocratic element is supplied by the judiciary, whose current judgments constrain the people.

10/01/2014

Originalism and Ideology
Mike Rappaport

I missed this article – Originalists, Politics, and Criminal Law on the Rehnquist Court by Rachel Barkow – when it came out, but I thought this part of the abstract was interesting:

By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. [Mike Rappaport insertion: the attitudinal model holds that the votes of the Justices are based on their political views, not the law.]  While a review of those cases confirms the conventional view that the Court's liberal bloc voted for criminal defendants more frequently than the Court's conservatives in non-unanimous cases, the more interesting pattern is the variation among the Court's conservatives in non-capital criminal cases in which the five conservatives disagreed among themselves. In the fifty-five non-capital criminal cases in which the Court's conservatives did not vote as a bloc, Justices O'Connor, Scalia, and Kennedy each voted for the defendant twenty-four times, Justice Thomas voted for the defendant in eighteen cases, and Chief Justice Rehnquist in fourteen cases. In several of the most important constitutional decisions of that period, including but not limited to the jury cases, the conservative originalists voted for defendants while the pragmatist conservatives ruled for the government. The jury cases are therefore part of a larger pattern that reveals the relationship between originalism, politics, and criminal law to be far more complicated than is commonly believed.

The question whether the justices vote based on their ideology or on the law is an interesting one.  I tend to have mixed views on this matter.  On the one hand, I believe that justices do, as a general matter, vote based on ideology in cases where they care about the outcomes.  That, of course, does not mean the opinions read that way, but in my view the underlying cause of their votes is ideology.

That said, I believe that the justices will vote based on a view of the law if they are strongly committed to that legal view.  Thus, Justices Scalia and Thomas are committed originalists and therefore will often vote based on their view of the original meaning, even if it leads them to vote in favor of specific results which they would not otherwise support.  In the block of cases reviewed in this article, Justices Scalia and Thomas supported the original meaning of (1) the right to a jury trial in a criminal case and (2) the right to confront witnesses, and this original meaning often provided more protection to criminal defendants than court precedent did.  As a result, these justices ended up voting for criminal defendants more often than their ideologies would otherwise have suggested.

Christopher Walker: An Empirical Study on Agency Statutory Interpretation
Michael Ramsey

Christopher Walker (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Faithful Agency in the Fourth Branch: An Empirical Study on Agency Statutory Interpretation (Stanford Law Review, Vol. 67, Forthcoming) on SSRN. Here is the abstract: 

The Constitution vests all legislative powers in Congress, yet Congress grants expansive lawmaking authority to federal agencies. Such broad delegation creates a principal-agent problem in the modern administrative state. As positive political theorists have long explored, Congress intends for federal agencies to faithfully exercise their delegated authority, but ensuring fidelity to congressional wishes is difficult due to asymmetries in information, expertise, and preferences that complicate congressional control and oversight. Indeed, this principal-agent problem has a democratic and constitutional dimension, as the legitimacy of administrative governance may well depend on whether the unelected regulatory state is a faithful agent of Congress. Despite the predominance of lawmaking by regulation and the decades-long application of principal-agent theory to the regulatory state, we know very little about whether federal agencies are faithful agents.

This Article is the first comprehensive investigation into this black box of agency statutory interpretation. The Article reports the findings of a 195-question survey of agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (Federal Communications Commission and Federal Reserve). Of the 411 officials sent the survey, 128 responded, and their responses shed considerable light on the tools and approaches they use to interpret statutes and draft regulations. The findings uncovered both challenge some theories on agency statutory interpretation while reinforcing others. As Congress, courts, and scholars gain more insight into how federal agencies use interpretive rules, legislative history, and judicial deference doctrines in agency statutory interpretation, the principal-agent relationship between Congress and federal agencies should improve as should the judicial branch’s ability to monitor and faithfully constrain lawmaking in the Fourth Branch.

09/30/2014

Two Essays from Judge Jeffrey Sutton
Michael Ramsey

Judge Jeffrey Sutton (Ohio State University (OSU) - Michael E. Moritz College of Law; U.S. Court of Appeals for the Sixth Circuit) has posted Courts as Change Agents: Do We Want More — or Less? (Harvard Law Review, Vol. 127, pp. 1419-1445, 2014) on SSRN. Here is the abstract: 

Review of Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (2013).

In claiming that Americans are looking for rights in all the wrong places, Professor Emily Zackin targets two flawed mindsets: (1) that the exclusive source of new individual rights is the federal Constitution, as opposed to the state constitutions; and (2) that constitutional rights in general are exclusively negative, just libertarian prohibitions on governmental action, not affirmative calls for the government to act.

The first point returns to a once dominant, then forgotten, now reemerging, insight — that constitutional rights do not originate solely in the U.S. Constitution or come only from decisions of the U.S. Supreme Court. There are fifty-one constitutions and fifty-one high courts, and all of them protect a wide variety of individual rights. The second point, the central thesis of Zackin’s book and the useful insight offered in it, acknowledges that the American constitutional law tradition focuses on negative protections — structural and individual-rights limitations on government — but claims that this perspective does not describe that tradition in full. To get the full picture, she urges, one must account for a strain of positive constitutional rights dating from the nineteenth century and found in most state constitutions, rights that operate by compelling governments to act, not by prohibiting them from acting. To support the point, Zackin offers three examples of positive-rights traditions in the states’ constitutions: the right to a free and adequate public education, the rights to safe working conditions and fair pay, and the right to a clean environment. The book purports to tell what is, not what should be. But some will take Zackin’s description to suggest, if not to call for, a norm-changing view: that the American constitutional tradition ought to account for such positive rights and appreciate the possibility of more.

Also from Judge Sutton: Courts, Rights, and New Technology: Judging in an Ever-Changing World (NYU Journal of Law & Liberty, Vol. 8, pp. 260-278, 2014) on SSRN. Here is the abstract: 

Friedrich A. von Hayek was primarily an economist and political philosopher, but I plan to discuss another side of him: Hayek the constitutional theorist. Hayek had a lot to say about constitutions in general, and the American Constitution in particular.

Note: A version of this essay was presented at the Ninth Annual Friedrich A. von Hayek Lecture at New York University School of Law on October 17, 2013.

09/29/2014

Jessie Allen: Law and Artifice in Blackstone's Commentaries
Michael Ramsey

Jessie Allen (University of Pittsburgh - School of Law) has posted Law and Artifice in Blackstone's Commentaries (4 Journal of Law: A Periodical Laboratory of Legal Scholarship No. 3 Chapter One, Summer 2014) on SSRN. Here is the abstract: 

William Blackstone is often identified as a natural law thinker for whom property rights were preeminent, but reading the Commentaries complicates that description. I propose that Blackstone’s concept of law is more concerned with human invention and artifice than with human nature. At the start of his treatise, Blackstone identifies security, liberty and property as “absolute” rights that form the foundation of English law. But while security and liberty are “inherent by nature in every individual” and “strictly natural,” Blackstone is only willing to say that “private property is probably founded in nature.” Moreover, Blackstone is clear that there is nothing natural about the right of inheritance, “a wise and effectual, but clearly a political, establishment.” Indeed, he critiques the assumption that a legal right as central and longstanding as inheritance must be somehow “natural,” observing that “we often mistake for nature what we find established by long and inveterate custom.” At the same time, Blackstone celebrates the many features of common law that have simply been made up. Blackstone’s unflinching formal, fictional, “as if” approach invests property law with a certain materiality. The only way to actualize a make-believe vision is to act it out, to embody it in formal doctrines and practices. In comparison, the modern realist approach to law as an instrument for policy is quite abstract. This leaves realist critics of Blackstonian formalism in the ironic position of arguing for a more transparent approach to law that winds up obscuring the constructive and constructed quality of the legal system that comes through loud and clear in the Commentaries. By openly celebrating legal fictions, Blackstone reveals the truth that law is a great fabrication, not some necessary reflection of the way things are, or should be.

09/28/2014

Genevieve Lakier: The Invention of Low-Value Speech
Michael Ramsey

Genevieve Lakier (University of Chicago Law School) has posted The Invention of Low-Value Speech on SSRN.  Here is the abstract:

It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern.

This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech —was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently.

By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.

By challenging the accuracy of the historical claims that the Court has used to justify the doctrine of low-value speech, this Article forces a reexamination of the basis for granting or denying speech full First Amendment protection. In so doing, it challenges the Court’s recent claim that the only content-based regulations of speech that are generally permissible under the First Amendment are those that target speech that was historically unprotected. What the history of the doctrine of low-value speech makes clear is that history has never served as the primary basis for determining when First Amendment protections apply. Nor should it today, given the tremendous changes that have taken place over the past two centuries in how courts understand what it means to guarantee freedom of speech, and to what kinds of expression the guarantee applies.

Via Andrew Koppleman at Balkinization, who adds:

[Justice] Murphy [in Chaplinsky v. New Hampshire] was merely making an offhand claim to shore up the value judgment that underlay his holding.  The modern Court, in yet another exercise in phony originalism, elevates that claim to official doctrine, and purports to be relying on an ancient understanding when in fact it is doing nothing of the kind.  The value judgments in the present doctrine may or may not be defensible, but they need to be defended as such, not cloaked behind bad history.

09/27/2014

Michael Salamone: The Influence of the Federalist Society on the Supreme Court
Michael Ramsey

Michael Salamone (Washington State University) has posted Community and Persuasion: The Influence of the Federalist Society on the Supreme Court (APSA 2014 Annual Meeting Paper) on SSRN. Here is the abstract: 

Since its organization in the early 1980s, the Federalist Society has sought to influence the federal courts by promoting conservative and libertarian legal scholarship. Qualitative accounts provide evidence that the Federalist Society has succeeded in this goal by acting as a political epistemic network. Here, I investigate the organization’s influence on a large-N scale. I argue that, if the Federalist Society does indeed proliferate legal arguments throughout its network, we should expect to see shared language among its members. Using plagiarism detection software, I compare the opinions of Justices Scalia, Thomas, and Alito and Chief Justice Roberts – the Supreme Court’s four Federalist Society members – to the opinions of those trying to influence them (in this preliminary analysis, judges on the U.S. Courts of Appeals) in order find the degree to which they share common phrases. While I find no independent effect of Federalist Society participation on shared language, I do find that these four justices borrow language from judges nominated by Reagan and W. Bush (both sympathetic to the Federalist Society vision) at a higher rate than they do from judges nominated by other presidents.

09/26/2014

The Bill of Rights iPad App
Michael Ramsey

Donald Drakeman sends this tip:

The National Archives just released a free iPad app about the creation of the Bill of Rights, including some very interesting images of handwritten mark-ups. It looks like an excellent teaching tool to me.
 

Will Baude on Originalism and Star Trek
Michael Ramsey

At Volokh Conspiracy, Will Baude: Star Trek, originalism, and law (responding to this post by Mike Rappaport, and also this classic essay by Michael Stokes Paulsen: Captain James T. Kirk and the Enterprise of Constitutional Interpretation).

09/25/2014

Further Thoughts from Seth Barrett Tillman (and Derek Muller) on the Meaning of "Legislature"
Michael Ramsey

Seth Barrett Tillman sends this interesting follow up on the meaning of "Legislature" (his prior comment is here):

From Mary Patterson Clarke, Parliamentary Privilege in the American Colonies (Da Capo Press 1971):

"The theory [of representation in the Maryland legislature in the 17th century] seems to have been that every freeman was entitled to attend the assembly in person if he desired to do so. In practice the majority of them chose not to be present, but instead to entrust their votes to [others who acted by proxy at the legislature] . . . . Apparently there was no rule as to the number of freemen that one [attending member] could represent."  (emphasis added). 

It strikes me that if a modern state legislature could organise itself along these historical lines and that if such a system is consistent with the  federal constitution, then designating a referendum as part of the state legislature is not quite an intellectual stretch and is arguably also consistent with the federal constitution.

Admittedly, Maryland practice was exceptional. Clarke calls it "peculiar". And I have no idea if this practice continued into the 1760s and beyond.

And, as to why "Legislature" might mean something different in Article V that it does in Article I:

Article V only calls on each participating state to make a binary decision: ratify or not. In that situation, only the legislature chamber acts and the expression of its action is not a statute, just a certificate as evidence of compliance with Article V. Where a federal constitutional provision leaves room for state discretion to enact a statutory regime -- i.e., set House district boundaries -- a statute is called for. In those circumstances, "legislature" as used in the federal constitution means the legislative power to make statutes, and it would include governors where the state constitution provided for a veto, etc. 

RELATED:  Derek Muller (Excess of Democracy) has a couple of posts on the Arizona State Legislature case, with additional links --

What does the Constitution mean by "Legislature"?

Paul Clement enters pending Arizona redistricting litigation

Nicholas Quinn Rosenkranz on Bond v. United States
Michael Ramsey

Nicholas Quinn Rosenkranz (Georgetown University Law Center) has posted Bond v. United States: Concurring in the Judgment (Cato Supreme Court Review, pp. 285-306, 2014) on SSRN. Here is the abstract: 

Bond v. United States presented the deep constitutional question of whether a treaty can increase the legislative power of Congress. Unfortunately, a majority of the Court managed to sidestep the constitutional issue by dodgy statutory interpretation. But the other three Justices — Scalia, Thomas, and Alito — all wrote important concurrences in the judgment, grappling with the constitutional issues presented. In particular, Justice Scalia’s opinion (joined by Justice Thomas), is a masterpiece, eloquently demonstrating that Missouri v. Holland is wrong and should be overruled: a treaty cannot increase the legislative power of Congress.

09/24/2014

Seth Barrett Tillman on the Arizona Re-Districting Case
Michael Ramsey

Seth Barrett Tillman sends this comment on the Arizona re-districting case I discussed earlier (the issue being whether re-districting can be given by referendum to a commission when the Constitution says it must be done by "the Legislature"):

There is a lot of slippage in regard to how the federal Constitution uses "legislature". Sometime it refers to the legislative chambers. See Article V. But other times it refers to the statutory law-making power of the state which includes the governor's veto power if the governor has such a power under state constitutional law. See Article I, Section 4, Clause 1. 

I wrote about this in 2005, in Seth Barrett Tillman, Betwixt Principle and Practice: Tara Ross’s Defense of the Electoral College, 1 N.Y.U. J.L. & Liberty 922, 925-26 (2005) (reviewing Enlightened Democracy: The Case for the Electoral College (2004)) (footnotes omitted):

When the Bill of Rights -- the first amendments to the Constitution -- was proposed, the ratifying States generally acted by resolution in ratifying amendments. Governors -- even if they were part of the lawmaking apparatus with regard to statutes -- were generally excluded. The term "legislature" in Article V was understood to embrace not the lawmaking or statute-making apparatus of the State, but just the legislative chambers. This view was not  universally shared. New York acted by bill, and Governor Clinton participated. Longstanding practice, not the text of the Constitution, has "ratified" the non-New York view with regard to the meaning of Article V: governors do not participate in the Article V process for ratifying amendments to the Constitution. [Tara] Ross believes and wants you to believe that just because the term "legislature" in Article V embraces only the legislative houses, the word "legislature" in Article II, Clause 2 -- "each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled" -- must have the same meaning. Not so fast. Cannot the term have a variety of meanings depending on context? For example, Article I, § 4 states that "the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof." Our unbroken history since the Founding is that here "legislature" refers not to the State's legislative houses, but to the lawmaking apparatus of the State. Here, state governors are and have always been included if they are part of the lawmaking apparatus under state constitutional law. Thus, the term "legislature" might have a variety of textual meanings depending on context. At least that was the position of Chief Justice Taft.

One could reasonably make the argument that the term "legislature" in Article II incorporates whatever method or methods each State's constitution permits for lawmaking, which might encompass statewide referendums as Colorado has chosen. So what does the term "legislature" mean in Article II? Answer: we do not know. And the federal courts have not told us. But if the term is ambiguous, if it will equally embrace two constructions, and one such construction preserves the constitutionality of state law and state powers and  simultaneously enlarges the zone of democratic action by American voters, it is obvious which construction the courts and commentators ought to pick.”

Professor Hasen in this publication [35 Hastings Const. L.Q. 599 (2008)] (and perhaps others) has examined this issue in greater detail than I did in my 2005 book review.

Looking back, I see the textual weaknesses of my 2005 view which you point out in your post. But it seems to me that as long as state constitutional law is consistent with the Guarantee Clause and equality rights in the 14th Amendment, a state has wide discretion in vesting the legislative power in the legislative design of its choice, which might very well include referenda, etc.

I hesitate to out-textualist Professor Tillman, who's as careful and committed a textualist as can be found.  But here I think I disagree with his ultimate conclusion.

First, I think it's dubious to read the same word to have different meanings in different articles of the Constitution.  Of course, it's not out of the question.  And it's very interesting that post-ratification practitioners apparently thought "Legislature" sometimes included the governor and sometimes did not.  But I am not sure what to make of that history without knowing why they treated the two differently.  Nor do I see anything in the context (apart from the peculiar post-ratification history) to explain why "Legislature" would mean one thing in one place and one thing in another.

But in any event, I don't think we need to solve that problem to deal with the Arizona State Legislature case.  I'm willing to accept that "the Legislature" meant "the Legislature acting through its constitutionally described processes," including either with the Governor's approval and simple majority or without the Governor's approval and a supermajority.  (Why that would not also apply to Article V is a mystery, but one we can leave aside).

However, it is a very different matter to then say that "the Legislature" means any person or entity given lawmaking authority by the state constitution.    By that reasoning, if the state constitution gave the Governor alone the power to regulate elections to the federal Congress, then the Governor would be "the Legislature" for that purpose.  That is so far from the textual meaning of "the Legislature" (which is typically understood as the exact opposite of the executive acting alone) that I would want to see some founding-era commentary or practice suggesting that meaning before giving it any credence -- and I bet it can't be found.

Of course, eighteenth-century separation-of-powers theory recognized that lawmaking power could be vested in various persons and entitites, not just in a representative assembly.  But merely having lawmaking power did not make a person or entity "the Legislature".  No one at the time would have described the French king as "the Legislature" even though he had power to make law by decree. 

Further, Article I, Section 4 says that elections are regulated "in each State by the Legislature thereof".  As I suggested in my prior post, "by the Legislature thereof" is redundant if this phrase means only "by each State, in the manner it decides."  The only way to make "the Legislature thereof" meaningful is to read it to refer to a specific branch of the state government.

I'll concede that the Framers were likely not thinking of the situation of the people acting by referendum.  They likely wrote "the Legislature" to distinguish from the executive or the judiciary.  But the whole of the people is not "the Legislature" any more that the executive or the judiciary is, even when they exercise lawmaking power.

In any event, I'm further persuaded that this is a very interesting case in terms of constitutional interpretation.

09/23/2014

Stephen Sachs: Originalism as a Theory of Legal Change
Michael Ramsey

Stephen Sachs (Duke University School of Law) has posted Originalism as a Theory of Legal Change (Harvard Journal of Law and Public Policy, forthcoming) on SSRN. Here is the abstract: 

Originalism is usually defended as a theory of interpretation. This Article presents a different view. Originalism ought to be defended, if at all, not based on normative goals or abstract philosophy, but as a positive theory of American legal practice, and particularly of our rules for legal change.

One basic assumption of legal systems is that the law, whatever it is, stays the same until it's lawfully changed. Originalism begins this process with an origin, a Founding. Whatever rules we had when the Constitution was adopted, we still have today -- unless something happened that was authorized to change them, under the rules as they stood at the time. We require claims of constitutional change to provide this kind of historical accounting; and a wide variety of approaches -- "conservative" and "liberal," from precedent to post-Founding practice -- are and could be defended as products of the Founders' law. These practices show an implicit commitment to a deeply originalist premise: that our law today consists of their law, the Founders' law, plus any lawful changes.

If this account is right, then what's important about the Constitution isn't what its text said, but what its enactment did -- what it contributed to American law at the Founding, as preserved to the present day. Rather than look to original intentions, original public meaning, and so on, we should look to the original law -- the law that was added by the enactment of each provision, under the legal rules governing interpretation at the time. This "original-law originalism" helps us to understand, and hopefully to resolve, longstanding constitutional debates: originalists and nonoriginalists ought to disagree about today's law, while different schools of originalists ought to disagree about the law of the past. 

The claim that we still take the Founders' law as our own, as lawfully changed, is a claim about current society; it might be true or false. This Article merely argues that, if it is true, it's the best reason to be an originalist -- and, if it's false, the best reason not to.

Professor Sachs presented an earlier version of this article at the Originalism Works-in-Progress conference last February.  It's had an enormous influence on my thinking, although there are important parts with which I disagree.  My comment at the time:

The bottom line is that this is going to be one of the most important articles -- quite possibly the most important -- in originalism theory in 2014.  (Its spot in the "originalism top ten for 2014" seems assured.)  It's a very ambitious attempt to justify originalism by reference to legal practices, not (as I'm inclined to do) by reference to normative claims.  Also -- and this is an odd thing to say about a draft article on legal theory that's 74 pages and 259 footnotes -- it's fun to read.

To very briefly summarize my reaction, I think the core insight (with which I agree, and which I did not see so clearly before reading the article) is: "that our law today consists of their law, the Founders' law, plus any lawful changes."  I disagree, though, with the implication that framing the matter this way elides normative conclusions.  It remains open to ask, what is a "lawful change"?  That is (in my opinion) a normative question: what should we regard as a lawful change?

09/22/2014

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

Having addressed the constitutional issues, I now turn to the policy issues  Would it be a good idea to have a new IC statute?  This is a complicated issue and not one I have fully made my mind up about.  But if Congress were to enact a new IC statute, I believe there is a reform that would significantly improve its operation as compared to the old statute.

The biggest problem with the old IC statute is the incentives it gave to the IC.  If one is appointed to be an IC, there is a sense in which one is only successful if one hauls in a big fish – if one prosecutes and convicts someone for a significant crime.  Moreover, the IC has only one task – to investigate a single target – in contrast to a normal prosecutor who has many other possible prosecutions to investigate.  Consequently, the IC has more time and resources to devote to the one target.  These considerations provide the IC with an excessive incentive to prosecute the person they are investigating.

There is a way to address this problem.  There should be two ICs that undertake the task of investigating and prosecuting an official.  The first IC’s job should be to investigate.  At the conclusion of his investigation, he should issue a report which makes the following determinations: (1) whether there were any violations of federal law, and if so, (2) whether based on normal standards of prosecutorial discretion, those violations should be prosecuted.  If the prosecutor concludes that violations should be prosecuted under (2), then he refers these violations to the second IC, who can only prosecute these violations.

The key discretionary decisions about whether to prosecute will then be made by a person who will not actually be doing the prosecuting and will not really derive fame from the prosecution.   The first IC’s time in the spotlight will be with the issuance of his report.  And that report will be judged based on how persuasive it is.  Members of different political parties will no doubt view the report through their own partisan lenses, but there will not be an inherent bias in favor of prosecution.  In fact, there is at least one factor arguing against further prosecution.  If the first IC authorizes the prosecution, then the second IC will get the attention and the first IC may be forgotten.

I believe that this separation of the investigation from the prosecution function would address the most significant incentive issue that afflicted the operation of the IC under the old statute.  Whether this is a sufficient to make the IC a desirable institution is another question.

Randy Kozel: Second-Best Stare Decisis
Michael Ramsey

Randy Kozel (Notre Dame Law School) has posted Second-Best Stare Decisis on SSRN. Here is the abstract: 

If Supreme Court Justices differ over the proper interpretation of the Constitution, can they nevertheless agree about the treatment of constitutional precedent?

The Supreme Court’s existing doctrine of stare decisis has much to recommend it. Yet the Court’s jurisprudence is confounded by the Justices’ varying interpretive philosophies. No doctrine of stare decisis can succeed unless it finds a way to mitigate the effects of methodological disagreement. For stare decisis to promote the stability and impersonality of law, it requires an analytical framework that is tailored for operation in a second-best world of interpretive pluralism.

This Article develops a new theory of second-best stare decisis. Second-best stare decisis emphasizes doctrinal factors whose content does not depend on adherence to any particular interpretive methodology. The second-best approach also incorporates structural solutions, such as supermajority voting requirements, to promote collaboration across methodological lines. Finally, second-best stare decisis pursues compromises that emphasize the common ground among divergent methodologies in their treatment of judicial precedent. The result is a reconceptualized doctrine of stare decisis that seeks to transcend interpretive disputes and underscore the Court’s status as a unified institution working across time — an institution that is something different, and something greater, than its individual members.

09/21/2014

Benjamin Justice: The Originalist Case Against Vouchers
Michael Ramsey

Benjamin Justice (Rutgers University) has posted The Originalist Case Against Vouchers: The First Amendment, Religion, and American Public Education on SSRN. Here is the abstract: 

During the last three decades, proponents of public school voucher programs on and off the bench have turned to original meanings discourse to argue that spending public dollars for religious education is consistent with the original meaning of the first amendment, as incorporated by the fourteenth. The following account argues that these arguments are wrong. Whether one weighs the narrow historical claims of formalist interpretations on their own terms, or whether one looks beyond them to a more historically comprehensive view of past meanings and intentions, or both, the originalist case is against vouchers.

This essay lays out its case in five parts. Part One examines Thomas Jefferson and James Madison’s views on religious establishment in mass, public education through their legislative proposals in Virginia and their public and private writings. Part Two seeks to understand the broader intellectual context in which Jefferson and Madison wrote (asking how mainstream their ideas were) by examining the most comprehensive public school plans written just before or concurrently to the ratification of the First Amendment. Part Three examines a singular public act in the 1790s: an essay contest sponsored by the American Philosophical Society (APS) asking contestants to design a system of public education suited to the “genius” of the new national government. Part Four examines education-related law developed during the early republic. These sources include the Northwest Ordinances of 1785 and 1787, State Constitutions, and state statutory law. Part Five of this essay carries the ideas and laws of the early republican period forward into the 19th century, briefly sketching out the implications of a robust originalist account of religious establishment and public education for understanding the slow evolution of state support for public education that culminated in the consolidation of a federated national system after the Civil War. The essay concludes by exploring the implications of a more historically robust originalist doctrine for contemporary debates about the relationship between religion and public education, with special attention to school choice programs.

The purpose of this essay is not to draw upon contemporary theory or research for or against school choice, but to stick to a purely originalist perspective. Ceteris paribus, the best way forward for proponents of school choice would be to repudiate their flawed originalist interpretations and instead embrace the revolutionary aspects of their consumerist doctrine: that “true private choice” makes good sense today, even if it did not in the late 18th or 19th centuries. Likewise, those opposed to privatizing mass education need look no further than the original intentions of the founding fathers of the republic and the meaning of the laws they enacted to preserve a republican form of government.

09/20/2014

Justice Breyer's Missing Constitutional Value
Michael Ramsey

Via How Appealing, Justice Breyer spoke at Yale Law School and, as reported here, identified the five core values of the Constitution as: "democracy, human rights, equality, separation of powers and the rule of law."

So what's missing here?

What about: Federalism.

Quite simply, without the Constitution's commitment to federalism there would have been no Constitution.  The drafters -- not all of whom shared this value -- recognized that their document would not be ratified if, in the words of nationalist Gouverneur Morris, it contained anything "too terrible to the states."  Thus the drafters, to allay fears of the new national government they were creating, developed the idea of enumerated powers: the national government need not be feared as a threat to liberty because it would have only a few specified powers, with the rest left to the states.  This structural protection of liberty became a centerpiece of the federalists' defense of the Constitution during the ratification debates, neatly summed in Madison's observation in Federalist 45 that the "powers delegated ... to the federal government are few and defined."

Even so, the Constitution was almost defeated.  It needed nine states to ratify; the first seven came easily.  Of the remaining six, North Carolina and Rhode Island rejected it, and in Massachusetts, Virginia and New York substantial anti-federalist sentiment existed, arising in significant part from fear of a powerful national government.  Massachusetts was the first of these to vote, in a convention that probably had an anti-federalist majority at the outset.  But a deal between moderate anti-federalist Sam Adams and the careful fence-sitter Governor John Hancock allowed a vote for ratification coupled with a call for future amendments -- among them, at Adams' insistence, the predecessor of the Tenth Amendment, reaffirming the enumerated powers structure.  Similarly, in Virginia and New York, the Constitution's supporters overcame anti-federalist sentiment in significant part by reassurances that the national government had only limited powers, with most powers reserved to the states.  Even so, the vote in all three states was close.  Had the Constitution's defenders not been able to point to the enumerated powers structure (and a promise to reinforce it through what became the Tenth Amendment) likely the whole enterprise would have been lost.

Without exaggeration, one might say that federalism is the first value of the Constitution.  Justice Breyer may not like it (as we know from his votes), but that's no ground to omit it. 

09/19/2014

Robert Pushaw: Fortuity and the Article III 'Case'
Michael Ramsey

Robert Pushaw (Pepperdine University - School of Law) has posted Fortuity and the Article III 'Case': A Critique of Fletcher's 'The Structure of Standing' (Alabama Law Review, Vol. 65, No. 289, 2013) on SSRN. Here is the abstract: 

25 years after William A. Fletcher wrote “The Structure of Standing,” Robert Pushaw builds upon Fletcher’s theory of standing and offers an alternative. Pushaw argues that Article III's text, drafting and ratification history, and early implementation -- materials that Professor Fletcher explicitly declined to consider -- reveal a basic and universally applicable standing principle. Standing should hinge on whether the plaintiff is presenting a true Article III “Case,” which requires a showing that her federal legal rights have been invaded fortuitously (i.e., involuntarily as a result of a chance occurrence) so that she can legitimately seek a judicial declaration of the law. Restricting federal courts to their Article III role of expounding federal law only as needed to exercise their “judicial Power” to decide genuine “Cases” helps implement the Constitution's system of separation of powers.

Pushaw’s theory that only “accidental” plaintiffs have standing to bring “Cases” leads him to modify Professor Fletcher's approach in two key ways. First, whereas Fletcher contended that Congress has plenary power to confer standing to vindicate statutory rights, Pushaw would accord such legislative judgments only a strong presumption of constitutionality -- but one that can be overcome in certain circumstances where blind judicial deference threatens separation of powers. Second, Pushaw agrees with Fletcher that particular constitutional clauses implicitly suggest who can enforce them and that Congress cannot grant standing more generously. Pushaw would add, however, that plaintiffs who bring “Cases” arising under the Constitution must demonstrate that their constitutional rights have been violated by happenstance events beyond their control.

Part I of the article describes modern standing law and identifies its serious flaws. Part II discusses Professor Fletcher's proposed solution to these problems. Part III evaluates his thesis in light of the intervening twenty-five years of standing cases and scholarship. Part IV sets forth Pushaw’s “accidental plaintiff” theory of standing as a more practical and historically grounded alternative.

RELATED:  The Supreme Court seems likely to grant certitorari to review this case at its conference at the end of this month.  The question presented is:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

(My prediction is based on the fact that the Court previously granted certiorari in a very similar case, First American Financial Corp. v. Edwards, which it then dismissed without reaching the merits.  See here, p. 2).

09/18/2014

The Original Meaning of "Legislature"
Michael Ramsey

At The Atlantic, Garrett Epps highlights Arizona State Legislature v. Arizona Independent Redistricting Commission, a case on appeal to the Supreme Court scheduled for the Court's upcoming conference.  As he explains:

Here’s another constitutional conundrum: What does “legislature” mean?

The answer could determine an issue at the heart of our current poisonous politics. Can the voters of a state take control of drawing House districts out of the hands of their elected legislators and entrust it to a bipartisan commission? That’s what Arizona voters did in 2010. Now the legislature is demanding to be allowed back in.  

Article 1, section 4, clause 1 of the Constitution says that “The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations ....” No one questions that state governments can draw their own legislative districts. But what does “legislature” mean? Does it mean “the legislative power of a state,” or “the bunch of politicians with bad haircuts who meet at the state capitol every year or so”?

Contrary to Professor Epps and the lower court, I think obviously the latter.

First, in other places where the Constitution uses "Legislature" it pretty clearly means the elected representative of the state, not just the state generically.

Article I, Section 2: "The Electors [for the House of Representatives] in each State shall have the Qualifications requisite for Electors of the most numerous branch of the State Legislature."

Article I, Section 3:  "The Senate of the United States shall be composed of two Senators from each States, chosen by the Legislature thereof ..." and even more conclusively: "if vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof shall make temporary Appointments until the next meeting of the Legislature..."

Article IV, Section 4: "The United States shall ... protect each of [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

Article V: "The Congress ... on the Application of the Legislatures of two thirds of the several states, shall call a Convention for proposing Amendments ... which ... shall be valid ... when ratified by the Legislatures of three fourths of the several States..."

These clauses contemplate specifically the body of elected representatives (which has "Electors", which may be "in recess" and may be "convened").  Further, several of them have routinely been assumed to refer only the body of elected representatives -- for example, who ratifies constitutional amendments.

In addition, "Legislature" would be superfluous in several of the clauses if it meant just whomever the State designated to act for it.  Article V, for example, could then just say that amendments are effective "when ratified by three fourths of the several States..."  Saying "when ratified by the Legislatures of three fourths of the several States..." is meaningful only if "Legislatures" refers to a specific body within the States, not just to the State as a whole.

Or, to put it another way, the Constitution's use of "legislature" of the state is, at minimum, a contrast with the state's executive.  That is, in all these phrases the Constitution is saying that the legislature and not the executive makes the relevant decision (except in some cases when the legislature is unavailable).  But if "legislature" meant just whomever exercises a particular power on behalf of the state (as Professor Epps suggests) then the state could give its executive that power (say, the power to approve amendments) and the executive would then be, paradoxically, the "legislature" for that purpose.  This simply makes nonsense of the text.

Moreover, in ordinary language "Legislature" clearly means the assembly of elected representatives: if someone is introduced as a "member of the state legislature" surely we know that person is an elected representative and not just someone who exercises the power of the state in some way.  I've not seen anything to suggest that this meaning was any different in the eighteenth century.  (The appellants' brief has plenty of examples the other way).

It may be the case, as Professor Epps says, that non-partisan boards are superior to legislatures for drawing election districts.  But the Constitution says "Legislatures".  We shouldn't pretend that means something other than what it obviously does.

The case is unusual in that it is an appeal rather than a petition for writ of certiorari, making it at least somewhat more likely that the Court will hear arguments; its other option is to summarily affirm (rather than just to deny cert.).  I'd be sad (although not necessarily surprised) if the Court went along with such a non-textual reading without really thinking about it.

09/17/2014

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

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

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

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

Some worthwhile pushback in the comments, too.

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

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

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

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

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

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

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

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

David Brink: Originalism and Constructive Interpretation
Michael Ramsey

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

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

09/16/2014

The Constitution and Omega Glory
Mike Rappaport

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

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

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

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

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

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

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

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

09/15/2014

Reinvigorating the Nondelegation Doctrine through the Constitutional Amendment Process
Mike Rappaport

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

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

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

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

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

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

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

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

Is the President Embracing the 2002 AUMF?
Michael Ramsey

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

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

Ilya Somin critiques the 2002 AUMF argument here:

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

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

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

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

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

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

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

The 2002 authorization approves military force to:

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

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

09/14/2014

Andrew Koppelman: Scalia and Garner on Interpretation
Michael Ramsey

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

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

09/13/2014

John McGinnis on the Udall Amendment
Michael Ramsey

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

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

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

09/12/2014

Justin Driver on Bruce Murphy on Scalia
Michael Ramsey

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

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

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

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

Also: Will Baude has thoughts here.

Further Thoughts on War Powers and the Islamic State
Michael Ramsey

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

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

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

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

09/11/2014

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

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

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

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

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

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

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

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

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

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

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

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

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

09/10/2014

Neil Buchanan on Textualism
Michael Ramsey

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

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

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

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

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

09/09/2014

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

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

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

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

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

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

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

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

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

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

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

09/08/2014

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

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

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

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

09/07/2014

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

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

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