Josh Blackman: Congressional Intransigence and Executive Power

Josh Blackman (South Texas College of Law) has posted Congressional Intransigence and Executive Power on SSRN.  Here is the abstract:

In NLRB v. Noel Canning, the Solicitor General argued that the President’s reading of the recess appointment power was justified as a “safety valve” in response to “congressional intransigence.” All nine Justices emphatically rejected this position, finding the President’s three appointments, made during a three-day break, could not be saved because of an obstructionist Senate. Yet, the reliance on “congressional intransigence” as a rationale for broadly interpreting inherent executive powers has been a hallmark of the Obama Presidency. As part of his “We Can’t Wait” platform, President Obama routinely cites Congress’s obstinacy to his agenda as a justification to engage in a series of executive actions that suspend, waive, and even rewrite statutes.

The lesson from Noel Canning is clear—congressional intransigence does not allow the president to flex his inherent Article II powers, as a means to release a safety valve of pressure in Congress. This article places the Court’s unanimous holding in Noel Canning in the context of the President’s unilateral action with respect to the Affordable Care Act, Deferred Action immigration policy, as well as the prisoner trade for Sgt. Bowe Bergdahl, and the “hostilities” in Libya. For each decisive inaction, in the face of with congressional opposition, the President executes at his “lowest ebb,” and warrants the closest scrutiny. In the domestic affairs context, the President can rely only on his inherent “policy powers,” which reside below Justice Jackson’s third Youngstown tier, in the fourth zone of “insight.”

(Via Josh Blackman's Blog).


Mark Graber: Preliminary Thoughts on Identifying and Mending a Dysfunctional Constitutional Order
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Belling the Partisan Cats: Preliminary Thoughts on Identifying and Mending a Dysfunctional Constitutional Order (Boston University Law Review, Vol. 94, 2014, p. 611) on SSRN. Here is the abstract:

This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional order to better constitutional politics. The New Deal constitutional order experienced a fairly painless transition and was able to operate successfully under the formal rules established in 1789 largely because institutions conformed to a system of two non-ideological parties. The increased polarization of the two major parties leads to failures to operate the New Deal constitutional order and inhibits a transition to a better constitution order. Those who champion constitutional reform must accept their incapacity to bell the partisan cats. Most likely, the present constitutional dysfunction will end only with the triumph of one major party. A slight chance exists that Americans will find a way to strengthen more centrist tendencies in the present constitutional order. That success, however, will more likely require cooperation from partisan elites than a successful escape from the conditions of contemporary politics.


More from Philip Hamburger on "Is Administrative Law Unlawful"
Michael Ramsey

Philip Hamburger, guest-blogging at Volokh Conspiracy, has these posts describing his recent book:

Why the history of administrative power matters

The foundation of my new book, Is Administrative Law Unlawful?, is a new account of the history of administrative law. Administrative power has been a part of American life for more than a century, but much of its history has remained untold. And this matters, because the history is sobering, and once it is understood, the danger and unlawfulness of administrative power become painfully apparent. ...

Extralegal power, delegation, and necessity

Conventionally, the constitutional analysis of administrative power focuses simply on whether this sort of power collides with particular provisions of the Constitution. It is useful, however, before turning to detailed constitutional questions, to consider the way in which this power is extralegal. With this concept, one can begin recognize the dangerous nature of administrative power and thus can begin to understand the importance of the constitutional objections. ...

The Constitution’s repudiation of extralegal power

The Constitution systematically repudiated absolute power, including extralegal power. Too often, administrative law is considered in terms of relatively flat constitutional doctrines, without much thought about its history, the dangers that provoked the development of constitutional law or broader conceptions of the role of law. Once one realizes that absolute power — to be precise, extralegal power — was the central danger that provoked the development of constitutional law, it becomes clear that such power is forbidden by the U.S. Constitution. Such is the main legal argument of my new book, Is Administrative Law Unlawful? ...

Rule of law vs. rule through law

At the level of political theory, my book, Is Administrative Law Unlawful?, questions the usefulness of the notion of rule of law. This amorphous principle has been used by some commentators, such as Richard Epstein, to critique administrative power, but more typically it has lent itself to justifications of this sort of power. And this should be no surprise, for much administrative power has statutory authorization, and it therefore is not obvious that it violates the rule of law.

What more clearly is at stake in administrative and other extralegal power is the principle of rule through law (or, if you prefer, rule by law). As explained by my book, absolute power in the 17th century was an attempt to rule outside the law, and, in response, constitutional law (both in England and America) was framed as a means of imposing rule through law, including rule through the regular courts. Precisely to preclude rule by prerogative or administrative edict, constitutional law placed lawmaking power in a legislative body and judicial power in courts, thereby allowing only rule by law. ...

Also, at Liberty Law Forum, The Unlawful Administrative State: A Conversation with Philip Hamburger (podcast).


Jeffrey Sawyer: English Law and American Democracy in the Revolutionary Republic
Michael Ramsey

Jeffrey K. Sawyer (University of Baltimore School of Law) has posted English Law and American Democracy in the Revolutionary Republic: Maryland, 1776-1822 (Maryland Historical Magazine, Vol. 108, No. 3 (Fall 2013), pp. 261‑290) on SSRN.  Here is the abstract:

Between 1776 and 1784, eleven of the original thirteen states made some provision for the continuing authority of the common law and British statutes. But there were highly significant variations in the pattern from state to state, variations that helped to differentiate each state as a unique jurisdiction. In Maryland, despite the effort of leading lawyers to settle the matter once and for all in 1776, the precise effects of Article 3 had to be worked out over several decades of political, legal, and intellectual maneuvering. As a result, Marylanders left a remarkable record of politicians, lawyers, and judges contesting for different views of the importance of legal continuity in a democratic republic. This history helps explain why Marylanders are still entitled to the benefits of the common law by the authority of Article 5 of their current constitution, and it also illuminates a defining feature of American democracy, the tension between its theory of sovereignty and the rule of law in practice.

As historians and students of the revolutionary era in Maryland well know, the constitution of 1776 as a whole was a defeat for direct democracy and any popular agenda of social leveling or economic equality that may have been in play, A few idealists, notably Colonel Rezin Hammond of Anne Arundel County, were elected to the 1776 convention but were unable to build a strong statewide political coalition. Effectively led by their wealthy and worldly leaders, notably Charles Carroll of Carrollton, Matthew Tilghman, Samuel Chase, Thomas Johnson, Charles Carroll the Barrister, and William Paca, a majority of delegates embraced independence from the British Empire but voted consistently for a style of government that was familiar and predictable. Why was this plan so conservative? In part because delegates embraced a conception of democratic legitimacy shaped not just by Revolutionary ideals and rhetoric about liberty and rights, but also by the particulars of local legal history.

(Via Larry Solum at Legal Theory Blog).


Scott Stephenson: Federalism and Rights Deliberation
Michael Ramsey

Scott Stephenson (JSD candidate, Yale Law School) has posted Federalism and Rights Deliberation (Melbourne University Law Review, Forthcoming) on SSRN.  Here is the abstract:

The relationship between federalism and rights is an understudied aspect of Australia’s constitutional system. It is rarely analysed in detail because the premise of most theories, which are drawn from the United States, is that federalism alters substantive outcomes on rights. These theories do not connect to Australia’s constitutional experience because the country’s federal system produces a large degree of policy uniformity.

In this paper, I argue that Australia’s federal system has a substantial impact on legislative deliberations of rights issues. Even when policy uniformity results, federalism introduces additional actors and alternative viewpoints into the lawmaking process, altering patterns of discourse. I employ three case studies — counter-terrorism, same-sex marriage and organised crime — to highlight and analyse the connections between federalism and rights deliberation. This understanding of the relationship has implications for the place of federalism in Australia’s constitutional system, which is often undervalued, and the country’s approach to rights protection, which relies extensively on a deliberative process that is attune to rights issues.


Seth Barrett Tillman on Quorums
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted two short essays on quorums on SSRN.  The first is Letter from Seth Barrett Tillman to Professor Anonymous, The Quorum Clause.  Here is the abstract:

Dear Professor,

You asked do “you believe that it is constitutional for a house to operate with a minority of members so long as no one asks for a quorum call[?]” In fact, I do.

This is why.

And as a follow-up:  Letter from Seth Barrett Tillman to Jimmy Y T MA, Counsel to the Legislature, Hong Kong Special Administrative Region of the People's Republic of China, Counting Quorums.  Here is the abstract:

Dear Legislative Counsel,

Thank you for writing. I am happy to send you a copy of my publication on the Quorum Clause of the U.S. Constitution. I have attached a copy. [See entry above.  --Ed.] It is short (and, perhaps, a bit informal), but I hope useful to scholars and practitioners such as yourself. 

You ask an interesting question—Do members have an unlimited right to seek quorum calls, even if repetitive, even if they effectively amount to a filibuster? I have not written on that precise question, but I have thought about that question for some years and corresponded with a wide array of parliamentarians in the English-speaking world following lex parliamentaria. I offer some thoughts below. Everything I suggest below assumes that any meeting was duly noticed under the relevant organic law: the constitution, statutes, standing parliamentary orders and rules, etc.


Is Griswold v. Connecticut Consistent with the Original Meaning?
Mike Rappaport

Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case.  Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with it).  In our book, Originalism and the Good Constitution, John McGinnis and I argue that, even if Griswold is not in accord with the original meaning, a proper theory of precedent would enforce it as having widespread support across the political spectrum.     

But is Griswold in accord with the original meaning?  I don’t believe any of the justifications offered in Griswold – substantive due process, the 9th Amendment, emanations from penumbras – work from an originalist perspective.  But I do believe that another basis may do the trick. 

These days I am inclined towards the following view of the Privileges or Immunities Clause of the 14th Amendment (which several other scholars hold in various forms).  Under this view – which might be termed the prevalent rights view – “the privileges or immunities of citizens of the United States” – refers to the rights that are prevalent throughout the United States at a particular time.  Thus, to determine what those rights are, one must look at what rights the states (and perhaps the federal government) protect.  It may be that those rights should have been protected over a period of time, not just for a particular instant.  I will try to explain the basis for this view in a future post. 

Under this view, there appears to be a strong argument that the right of married couples to use contraceptives was a prevalent right in 1965 – that is, a right enjoyed throughout the United States.  According to Justice Harlan in Poe v. Ullman, “Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.”   

If Justice Harlan is right, then this would support a right to use contraceptives.  Exactly the parameters of that right – whether it extended to unmarried couples, to the distribution of contraceptives, and other aspects – would depend on the number of states that treated these aspects as rights and the necessary number needed to establish it as a prevalent right.  

I should note that I have changed my mind about this issue.  Based on the feeble justifications given for the right in Griswold and subsequent cases, I have for a long time believed that Griswold did not accord with the original meaning.  But now I am inclined (although am not certain) that it is justified under the original meaning. 

(Cross posted at the Liberty Law Blog)

Paul Kahn & Kiel Robert Brennan-Marquez: Statutes and Democratic Self-Authorship
Michael Ramsey

Paul Kahn (Yale Law School) and Kiel Robert Brennan-Marquez (Yale Law School) have posted Statutes and Democratic Self-Authorship (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract: 

This Article reframes the longstanding debate over statutory interpretation. That debate tracks a familiar dichotomy: text v. purpose. Both sides of the debate, however, accept the idea that courts are to be the faithful agents of the legislature that authors the laws. We disagree. In our view, in a democracy the people must see themselves as the authors of statutes. This is what allows the rule of law and the “rule of men” — that is, the rule of the people — to coincide. The faithful agency view of statutory construction has confused drafting with authorship: the legislature drafts statutes, but authorship is a social practice of the people holding themselves accountable for the law. The courts’ role, when interpreting a statute, is to cast the law as something that we the people have done together, rather than something done to us by legislators.

This shift in paradigm yields dramatic consequences. Apart from helping to overcome the endless debate between textualism and purposivism, our theory also brings considerable clarity to what courts actually do when they interpret statutes. Moreover, it locates the judicial function squarely within an important strand of the political theory of self-government, stretching from Thomas Hobbes to Jurgen Habermas.

For many decades, commentators have been sympathetic to the idea of self-authorship as applied to “fundamental” law — especially constitutional law. But they have been unable to connect that theory of self-authorship to the construction of “ordinary” laws. The error has two basic sources. First, scholars have focused too much on judicial review as a counter-majoritarian practice; second, they have fixated on voting as the site of democratic participation. Our argument rejects both of these limits, offering a robust account of democracy as the rule of law.


Jack Balkin: How Liberals Can Reclaim the Constitution
Michael Ramsey

In the Washington Post, Jack Balkin: How Liberals Can Reclaim the Constitution.  From the conclusion:

The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. Liberals should claim for themselves — as conservatives already have — not only the constitutional text but the entire constitutional tradition, including the ideals and hopes of the generations that fought to create a new nation and establish the Constitution.

The founders — including the Reconstruction framers who gave us the 13th, 14th and 15th amendments — created a framework on which later generations must build to realize the Constitution’s great promises of liberty and equality. It is our job, in our own day, to further that great work. That is the liberal vision of the Constitution, and it is both originalist and living constitutionalist.

Via Balkinization, where Professor Balkin adds:

The point of the piece is not that liberals should all become Scalia-style originalists and start talking like movement conservatives do. Rather, it's that liberals should simply reject the false dichotomy between originalism and a living Constitution.

Accepting that opposition as  the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in.  Contemporary liberals should reject that invitation. The American constitutional tradition, understood in its best light, is a liberal egalitarian tradition.

I'm all for using originalism to reach liberal results -- I think that's the best way to defend originalism from the charge that it's no more than cover for a conservative agenda.  But Balkin seems to go to the opposite extreme, and find that (his version of) originalism always (or almost always) leads to liberal results.  Why is it not most plausible that the Constitution is a set of rules, drafted without knowledge of modern political squabbles, that sometimes leads to conservative results (in modern terms) and sometimes to liberal results?  Sadly, there is not much constituency for that proposition.



Ilan Wurman on "Is Administrative Law Unlawful"?
Michael Ramsey

In The Weekly Standard, Ilan Wurman (see his interesting prior article here) reviews (favorably) Philip Hamburger's Is Administrative Law Unlawful? From the review's introduction:

The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument.

“The trouble in early times was almost altogether about the constitution of government; and consequently that was what engrossed men’s thoughts,” wrote Woodrow Wilson in his Study of Administration (1887). “The functions of government were simple, because life itself was simple. .  .  . No one who possessed power was long at a loss how to use it.” That all changed—apparently in Wilson’s generation—when “present complexities of trade and perplexities of commercial speculation” posed new challenges for government. 

“In brief,” Wilson wrote, “if difficulties of governmental action are to be seen gathering in other centuries, they are to be seen culminating in our own.” So we need experts: “[W]e have reached a time when administrative study and creation are imperatively necessary to the well-being of our governments saddled with the habits of a long period of constitution-making.” 

Necessary; there is no alternative. As the Supreme Court has dclared, “[I]n our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” 

That is a convenient narrative for the defenders of the administrative state. But it is fanciful. It is not historically accurate. And the justifications—especially the claim of necessity—are not new. Neither are the powers of the administrative state. Indeed, Philip Hamburger, professor of law at Columbia, argues here that it was precisely these justifications and powers that English and American constitutional law developed to protect us against. Not only is the modern administrative state unconstitutional, it is the very thing our Constitution sought to prevent.

(Via Power Line)

RELATED:  Professor Hamburger will be blogging about his book at Volokh Conspiracy this week. 


Roy Brownell: The Independence of the Vice President
Michael Ramsey

In the current issue of the NYU Journal of Legislation and Public Policy, Roy E. Brownell II has the article The Independence of the Vice Presidency (17 N.Y.U. J. L. & Pub. Pol'y 297 (2014)).  From the introduction:

Public portrayal of the Vice President’s standing in relation to the President suffers from a trio of shortcomings. One is that the Vice President is often characterized, either explicitly or implicitly, as lacking independence from the President. The Vice President is widely viewed as ready and willing to do all that the President asks, whenever he asks it; the prototypical “company man.” As  a result, it is often assumed the Vice President must do his bidding. However, such assertions confuse political prudence with constitutional prescription. This article will emphasize that, as a constitutional matter, the Vice President is independent from the President and can and does take actions and public positions that are contrary to the latter’s wishes.

A second problem in discussions of presidential-vice presidential relations is that, while some authorities properly note the Vice President’s independence, they fail to analyze this trait in any detail. It has been largely left as an unexamined assumption. This article will attempt to fill this void and review closely the legal sources of, and justifications behind, vice presidential independence.

Finally, many of the same authorities who recognize the Vice President as constitutionally independent believe this characteristic is little more than a theoretical proposition. They contend that vice presidential autonomy as a practical matter is, or at least has recently become, a dead letter. These scholars end up in the same place as those who question or reject entirely the office’s independence. Thus, there is a rough consensus that the Vice President lacks autonomy, be it either constitutional or practical. This article cuts against the grain and argues that the Vice President is independent in both respects.

(Thanks to Seth Barrett Tillman for the pointer).


Mark Kende: Justice Clarence Thomas's Korematsu Problem
Michael Ramsey

Mark Kende (Drake University Law School) has posted Justice Clarence Thomas's Korematsu Problem (Harvard Journal of Racial & Ethnic Justice, Vol. 30, p. 201, 2014) on SSRN. Here is the abstract:  

The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision. This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case. Two cases provide the major evidence. First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights.

Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process. California argued this minimized racial violence. Thomas therefore abandoned his well-known position of racial color-blindness in the case. The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu. The essay also addresses several counter-arguments. While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.


Neomi Rao on the President's Removal Power
Michael Ramsey

Neomi Rao (George Mason University School of Law) has posted Removal: Necessary and Sufficient for Presidential Control (Alabama Law Review, Vol. 65, No. 5, pp. 1205-1276, 2014) on SSRN. Here is the abstract:

Legal and political uncertainty continues to surround the independent agencies. Courts and scholars have recognized that control over administration usually depends on political realities rather than on legal categories of "independence." This perspective, however, tends to disregard the constitutional boundaries for administration. Contrary to the conventional view, I explain why Congress's authority over agency structure must have judicially enforceable limits in order to prevent encroachment on the executive power. In light of the constitutional text and structure, this Article demonstrates that the ability to remove principal officers is necessary and sufficient for presidential control of the executive branch. This means that all agencies, including the so-called independent agencies, must answer to the President. The principle allows Congress and the President to operate within their respective spheres while leaving most questions about actual administrative control to the political process. Limits on the President's removal authority have always been in tension with the basic constitutional design and in recent years there has been growing dissatisfaction with the meaning, structure, and effects of independence. The precedents and functional justifications for supporting agency independence have largely collapsed. The issue is ripe for reconsideration. The constitutional structure requires presidential control and supervision over administration and the removal power provides the mechanism for the possibility of such control.


Adam Winkler on Noel Canning as a Victory for Nonoriginalism
Michael Ramsey

At Slate, Adam Winkler celebrates:  Active Liberty Lives! Justice Breyer’s opinion in the recess appointments case deals a blow to originalism.

Cass Sunstein has a similarly celebratory article at Bloomberg View: Breyer's Greatest Triumph over Scalia.

My reaction:

No one celebrates wins over weak, marginal opponents.  In celebrating a (supposed) defeat of originalism, Winkler and Sunstein are acknowledging the threat it poses to their way of thinking.  A generation ago, no one would have thought it noteworthy that the Supreme Court adopted a nonoriginalist approach.


Is Originalism the Law?: The Constitution in Exile Problem
Mike Rappaport

Note: Yesterday, I put up a post on Steve Sachs's new paper addressing the issue whether originalism is the law.  In it I reference, an earlier post I did on his paper.  By mistake, that earlier post had been put up only on the Liberty Law Blog, not on the Originalism Blog.  Sorry about.  So here is the earlier post. This should be read before reading yesterday's post Is Originalism the Law: The Basis of Nonoriginalism.  

In the past, I have discussed the justification for originalism that the original meaning of the Constitution is the law. Under this positivist view, originalism is the law and and therefore one can make a normative argument that the original meaning should be followed. I have expressed skepticism about this argument: my tentative position is that the law allows, within significant limits, both originalism and nonoriginalism.

Steve Sachs has a new paper out that attempts to develop the positivist originalist argument further. In The “Constitution in Exile” as a Problem for Legal Theory, Steve in part responds to my post questioning this positivist argument:

On its face, the jurisprudential objection is quite plausible. It has even persuaded some originalists. Michael Rappaport, for example, straightforwardly defends originalism as a “desirable” reform program, rather than as a consequence of “following the law.” He notes that “people are in jail in the U.S.—lots of them—for violating laws that are inconsistent with the Constitution’s original meaning,” and that “nonoriginalist Supreme Court decisions are enforced without a second thought by most people all the time.” In this context, “[w]hat does it mean to say that the Constitution’s original meaning is the law?” More generally, “[w]hat does it mean for something to be the law, if the legal system is not enforcing it?”

Steve’s paper is excellent and I strongly recommend it. The paper contains all types of interesting insights from which I learned quite a bit. But in the end the paper does not really move me any closer to the view that the original meaning is the law under positivism.

(As an aside, I should note that my position is not, as Steve suggests, merely that originalism should be justified as a desirable reform. For a discussion, see here.)

In much of the paper, Steve is concerned merely to rebut the argument that simply because judges are regularly enforcing nonoriginalist rules means that the law is nonoriginalist. He argues that one can have nonoriginalist rules enforced even though originalism is the law. To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues, one might conclude that even though the people in the society believe that eating lobsters is lawful, they are mistaken.

This is a powerful example and may very well show that widespread actions that are accepted by a legal system could be unlawful in some wider sense even though they are accepted as lawful. Steve attempts to justify this example based on a more general approach. He argues that under the legal reasoning accepted in the United States, when there is a conflict between higher and lower norms, the higher norm takes precedence. In the prior example, the higher norm is “do not eat creatures that feel pain; the lower norm is “lobsters may be eaten (because they do not feel pain).”

I have a lot of sympathy for this argument (although I am not certain it is correct). But I have two reservations. First, I think it oversimplifies matters to say that the law in that society prohibited the eating of lobsters. The legal system actually allowed the eating of lobsters. The law that led to that result involved a mistake and had the mistake been revealed a different result would have occurred. So in a way the law allowed the eating of lobster and in another way it prohibited it.

Second, but more importantly, Steve imagines that something like this argument would apply to justify originalism. The higher norm would be “follow the original meaning of the Constitution”; the lower norm is “provision X has a meaning” (where X turns out not to be the original meaning). But I believe that the case of originalism is different than the lobster case (as Steve himself recognizes).

In a future post, I plan to discuss the issue further. 

Heidi Kitrosser: Interpretive Modesty
Michael Ramsey

Heidi Kitrosser (University of Minnesota - Twin Cities - School of Law) has posted Interpretive Modesty (Minnesota Legal Studies Research Paper No. 14-34) on SSRN. Here is the abstract:

“New originalism” presents a profound challenge to originalist determinacy – that is, to the notion that original constitutional meanings alone can resolve most constitutional controversies. While new originalists purport to seek out and adhere to original meanings of constitutional provisions, they acknowledge that some original meanings are too thin to fully resolve many constitutional questions. Such acknowledgment stands in sharp tension with traditional claims of originalist determinacy.

While new originalism improves on “old originalism” in important ways, the former’s break from determinacy is not clean enough. New originalists are correct that it is neither epistemologically defensible nor normatively preferable to attribute complete answers to constitutional controversies to original textual meanings alone. This Article bolsters that point, responding to old originalists’ newest defenses of determinacy. Yet the Article criticizes new originalists for their own, more limited determinacy. While new originalists maintain that original meanings alone often are insufficient to resolve constitutional controversies, they overlook the epistemic uncertainties intrinsic in ascertaining original meanings themselves.

This Article offers an “all the way down” critique of originalist determinacy. It challenges originalism’s ability not only to answer all constitutional questions, but also to settle reliably on single original meanings in the first place. The Article proposes to build on two of new originalism’s tools – its embrace of thin original meanings and its distinction between interpretation and construction – and to build as well on historicist critiques of originalism to create a new approach to epistemic uncertainty in constitutional interpretation. The approach is called “interpretive modesty.”


Is Originalism the Law?: The Basis of Nonoriginalism
Mike Rappaport

In my last post on Steve Sachs’s new paper, I noted that Steve argues that one can have nonoriginalist rules enforced even though originalism is the law. I wrote:

To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues, one might conclude that even though the people in the society believe that eating lobsters is lawful, they are mistaken.

This is an important example, but it is not clear that it can be used to argue for originalism. The question is how similar this example is to the current situation involving nonoriginalist judging. Let’s analyze a couple of different situations.

1. A Mistake: In Sachs’s example, the judges make a mistake. As a result, pretty much everyone – those who believe in the principle of not eating creatures that feel pain and those who believe that lobsters do not feel pain – would acknowledge, once the mistake is corrected, that the lobsters should not be eaten.

If judges were making a mistake about their interpretations – if nonoriginalist judges thought their decisions were actually the original meaning but were mistaken about that – then this situation would be comparable to the lobster example. But, as I argue below, most nonoriginalist judges do not mistakenly believe that they are following originalism.

2. Open Contestation: Now consider the opposite extreme. Nonoriginalists come right out and acknowledge that they are not applying the original meaning. In this situation, it is clear that the rule of recognition does not require originalism. Instead, it allows both originalism and nonoriginalism since decisions are written openly from both perspectives.

3. Silence as to the Original Meaning: Not let’s move to the situation which may reflect the reality of American law. In this situation, most judges do not accept originalism, but they do not acknowledge that in public or in their opinions. This is neither exactly like the mistake (or lobster situation) in scenario 1 nor like the open contestation of scenario 2.

What is one to say about this situation? One take is that this is much more like the open contestation than the mistake scenario. The reason is that it all judges and most lawyers know that large numbers of judges do not believe in originalism. Thus, it is common knowledge that originalism is not accepted generally among judges and this suggests that originalism is not required by the rule of recognition.

Of course, one might disagree with this argument. The rule of recognition is what everyone agrees with – or at least what is not criticized as unlawful by the relevant officials. But decisions that claim not to follow the original meaning arguably do not fall within this category. One cannot say that people agree with such decisions, since there aren’t any, and we do not know that such decisions would not be criticized as unlawful.

While this argument has some merit, it does not establish that nonoriginalism is not the law. It merely establishes that decisions that openly claim not to follow the original meaning are not the law. It does not establish that decisions that simply (or silently) do not follow the original meaning are not the law.

Now one might respond that there is a norm against such silent actions, but that is hard to claim, because that is what has been going on for a long time. But even if that were the case, this would not stop nonoriginalism. First, nonoriginalist judges are probably not unwilling to say that they follow precedent despite a contrary original meaning. Second, even in cases where there are no precedents, nonoriginalist judges often have moves that allow them to ignore the original meaning. For example, the recent Recess Appointments decision in Noel Canning – where there were no Supreme Court precedents – illustrated two of these. Justice Breyer claimed that the original meaning was ambiguous by relying on a very capacious understanding of ambiguity. (More generally, nonoriginalist judges could often claim that the original meaning is not clear by adopting a strict standard for establishing the original meaning.) He also claimed that practice was important in determining the meaning of the Constitution.

Thus, there are significant techniques that nonoriginalists can use to decide cases according to nonoriginalism without expressly claiming that they are not following the original meaning.

(Cross posted at the Liberty Law Blog)

Richard Garnett: Accommodation, Establishment, and Freedom of Religion
Michael Ramsey

Richard Garnett (Notre Dame Law School) has posted Accommodation, Establishment, and Freedom of Religion (67 Vand. L. Rev. En Banc 39 (2014)) on SSRN. Here is the abstract:

This short essay engages the argument that it would violate the First Amendment’s Establishment Clause to exempt an ordinary, nonreligious, profit-seeking business – such as Hobby Lobby – from the Affordable Care Act’s contraceptive-coverage rules. In response to this argument, it is emphasized that the First Amendment not only permits but invites generous, religion-specific accommodations and exemptions and that the Court’s Smith decision does not teach otherwise. In addition, this essay proposes that laws and policies that promote and protect religious freedom should be seen as having a “secular purpose” and that because religious freedom, like clean air, is an aspect of the public good, it is both appropriate and unremarkable that, sometimes, maintaining the conditions for religious freedom is not cost-free.

RELATED:  Sasha Volokh expresses an opposite intuition here, quoting Justice Stevens' concurrence in City of Boerne v. Flores.  But he adds:

Note that there may be strong originalist arguments that religious exemptions were permissible at the Founding, so I’m not trying to make any strong originalist point here — just that, as a first-principles matter, I’m not wild about the idea of religious exemptions, and find them to be in strong tension with my Establishment Clause sympathies.

That comment captures the originalist/nonoriginalist debate nicely, if perhaps unintentionally.  It's a fair question whether religious exemptions constitute laws "respecting an establishment of religion."  So you could decide it by trying the figure out what "establishment of religion" meant to the founding generation.  Or you could decide it based on your "Establishment Clause sympathies," whatever they may be.

And, to echo what I've said before, I'm not necessarily trying to stack the argument for or against originalism in putting the choice in such terms.  I'm sure if I were a judge, or if I thought judges would usually agree with my sympathies, I would be very tempted to pick the latter.  And there are decent public policy arguments for the latter view in any event.  But it is important to see the choice for what it is.


The Recess Appointments Decision Part IV: The Motivations Underlying Justice Breyer’s Practice Based Decision

The day after the Noel Canning case involving the Recess Appointments Clause came down, the Federalist Society held a teleforum conference on the issue. I was on a panel with Noel Canning’s attorney in the Supreme Court, Noel Francisco, as well as Professor Kristin Hickman from Minnesota Law School.

Kristin raised an interesting point. She argued that one of the principal motivations for Justice Breyer’s majority decision relying on practice to allow a broad recess appointment power was a strong reluctance for the Supreme Court to hold that hundreds of recess appointments by Presidents had been unconstitutional.

I am not sure that this Justice Breyer’s real motivation. Another possibility is that he favors a broad recess appointment power because he has a strong sympathy for bureaucracy and bureaucratic efficiency. Bureaucracy gets things done. Politics, like the requirement of Senate confirmation, may impede such efficiency.

But let’s assume that Justice Breyer really was reluctant to hold this presidential practice unconstitutional. Is that a legitimate motivation?

Absolutely not! While it will be harmful to the credibility of the President and the government to acknowledge they were violating the Constitution, it is more important to the Constitution and to the rule of law – as well as the integrity of the Supreme Court – to announce that the government has been violating the law. If the Supreme Court ignores the law – and allows in Justice Scalia’s phrase, an adverse possession constitution – this contributes all the more to an illegal government and to incentivizing the executive to ignore the law.

(Cross posted at the Liberty Law Blog)

Steven D. Smith on Originalism
Michael Ramsey

At Liberty Law Blog, my colleague Steve Smith (guest-blogging for July) asks: Has “Originalism” Lost Its Way?  An excerpt:

The progress of originalism is impressive–and all to the good, I think. And yet I sometimes wonder: somewhere along the way did originalism . . . well, lose sight of its central purpose– of its “original intention,” so to speak. (I have elaborated on some of my reservations here [Ed.: The link is to a great paper called "That Old-Time Originalism"].) The fact that high-profile “progressive” scholars like Michael Perry back in the 1980s and more recently Jack Balkin can convert to originalism without in any way altering their capacious conception of the Court’s role might be a sign that, somewhere along the line, originalism may have gotten off the track.

Of course, more conservative originalists may question whether Perry and Balkin truly deserve to be included in the fellowship at all. But my sense is that Perry and Balkin are in good faith; they don’t seem to be acting as subversive infiltrators or impostors. More importantly, what Perry, Balkin, and other more progressive originalists do seems authorized by originalist orthodoxy. After all, they are merely working from a distinction that even most conservative originalists (not all) insist on– namely, the (ostensible) distinction between “meaning” and “expected applications.” Once you say that the “meaning” of a constitutional provision can deviate from what the enactors expected the provision to do, and can instead incorporate some “principle” or “norm” whose scope and implications the enactors only imperfectly comprehended, there is nothing– nothing in originalism, anyway– to preclude the Perrys and Balkins of the profession from arguing for expansive interpretations that would leave the enactors shuddering in their graves.


Philip Hamburger on Administrative Law (Excerpts) [Updated]
Michael Ramsey

Power Line is running a series of excerpts from Philip Hamburger's book Is Administrative Law Unlawful? .  Here is part 1, part 2 and part 3.

RELATED (via Power Line): Video of Professor Hamburger: Administrative Edicts or the Rule of Law: How Shall We Be Governed?

UPDATE:  Power Line also has this Q&A with Professor Hamburger.  All the responses are interesting but I like this one in particular:

Power Line: Does English legal history provide an analogue or antecedent for administrative law? Is this a case of eternal recurrence?

Philip Hamburger: Sadly, administrative power is not just a modern development. Instead, it appears to be a recurring phenomenon–a part of the long standing tension between absolute power and government through law. Repeatedly over the past thousand years, rulers have attempted to exercise binding power, legislative and judicial, not merely in a regular manner through the law and the courts of law, but also irregularly, through prerogative or administrative commands.

Magna Charta already took a stand against this sort of power. The 1354 and 1368 due process statutes even more emphatically barred it. But English kings persisted in exercising extralegal power until, in the seventeenth century, the English adopted constitutional ideas to put an end to this danger. Similarly, American constitutions barred extralegal power. Nonetheless, it has come to back to life.

The tendency toward extralegal power thus seems to arise not from the nature of modern society, but from the nature of human beings, who always seek more power, if not through law, then outside the law.

Richard Pomp: The Unfulfilled Promise of the Indian Commerce Clause and State Taxation
Michael Ramsey

Richard Pomp (University of Connecticut - School of Law) has posted The Unfulfilled Promise of the Indian Commerce Clause and State Taxation (Tax Lawyer, Vol. 63, No. 4, 2010) on SSRN. Here is an excerpt: 

The Constitution gives Congress the right to “regulate Commerce . . . with the Indian tribes.” Has the Indian Commerce Clause achieved its purpose? Have the Courts interpreted the Clause consistent with Congressional intent? I argue that the answer is, disappointingly, “no.”

The Supreme Court has emasculated and denigrated the Indian Commerce Clause, preventing implementation of the Founders’ vision. The Court has refused to use the Clause as a shield against state taxation.

Chief Justice John Marshall had the opportunity in 1832 in Worcester v. Georgia to shape the Clause into a powerful doctrine. As a ratifier, he was privy to the debates over the Clause. Instead of making the Indian Commerce Clause the centerpiece of his opinion, he used the case as a platform for an eloquent and courageous defense of Indian sovereignty — a thumb in President Jackson’s eye who had initiated the Removal Act of 1830 — just two years before Worcester.

Despite the long discussion in Worcester describing and defending the pre- and extra-constitutional sovereignty doctrine — immunizing the Cherokees from Georgia’s laws — Chief Justice Marshall was apparently worried about resting the opinion on that ground. The jurisdictional constraints on the Court imposed by the Judiciary Act of 1789 required that the case be grounded in the Constitution itself. He needed narrower grounds than the grandiose and sweeping pre- and extra-constitutional concept of Indian sovereignty, especially in a case involving penal laws. It was not enough that the laws of Georgia violated the sovereignty of the Cherokees, he had to show that they were repugnant to the “constitution, laws, and treaties of the United States.”


Ben Wittes on the New York Times and Originalism
Michael Ramsey

At Lawfare, Benjamin Wittes: The New York Times Editorial Page Discovers Originalism—In Japan.  The background is that Japan's prime minister Shinzo Abe wants the Japanese military to be more active; Japan's pacifist constitution seems to pose a barrier, thus apparently requiring a constitutional amendment.  But, the Times complains, "Mr. Abe circumvented that process by having his government reinterpret the Constitution."  Wittes comments:  

It’s interesting how skeptical the Times is about such interpretive methodologies in Japan given its insistence on its own right to reinterpret the U.S. Constitution to mean whatever it wishes on any given day.

James Dawson: Public Danger
Michael Ramsey

James Dawson (Yale Law School JD '14) has posted Public Danger on SSRN. Here is the abstract:

This paper provides the first account of the term “public danger,” which appears in the Grand Jury Clause of the Fifth Amendment. I argue that, in light of historical records from the seventeenth and eighteenth centuries, the proper reading of “public danger” is a broad one. On this theory, public danger includes not just impending enemy invasions, but also a host of less serious threats (such as financial panics, jail breaks, floods, fires, natural disasters, and plagues). This broad reading is further supported by constitutional history. In 1789, the first Congress rejected an amendment that would have replaced the phrase “public danger” in the proposed text of the Fifth Amendment with the narrower term “public invasion.” Several other tools of interpretation — such as an intratextual analysis of the text of the Constitution and a survey of other legal doctrines that use a “public danger” standard — also counsel in favor of an expansive reading. The paper then unpacks the practical implications of this reading. First, the fact that the Constitution expressly contemplates “public danger” as a gray area between war and peace informs the ongoing scholarly debate about whether the global war on terror is an endless war, a “wartime,” or something else entirely. “Public danger” provides a method of thinking about terrorism that is already built into the Constitution, and therefore calls into question the elaborate but nonconstitutional theories that some scholars have invented to help order our thinking about terrorism. My second argument is that, since the Founders recognized the concept of “public danger” but yet declined to extend enhanced authority to the President during these periods, the Grand Jury Clause may operate as an implicit limitation on executive power in the post-9/11 era. Third, I suggest that a broad reading of public danger would allow Congress to massively expand the jurisdiction of courts martial merely by altering the definition of the phrase “actual service” in the Fifth Amendment.


Randy Barnett on the Declaration of Independence
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: The Declaration of Independence Annotated.  From the conclusion:

The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition:  “first comes rights, then comes government.”  According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation;  (2) The protection of these rights is the first duty of government; and (3) Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights — or its systematice violation of rights — can justify its alteration or abolition; (4) At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.  This is powerful stuff.


Can the House Sue the President (More Seriously this Time)?
Michael Ramsey

I noted this possibility earlier, but it now seems to be actually happening.  Michael Stern (Point of Order) comments here: U.S. House of Representatives v. Obama: The Problem of Standing.  

Jack Goldsmith has these thoughts: Suing the President for Executive Overreach.  

And Andy McCarthy has even harsher thoughts: Boehner Is Bringing a Whistle to a Gunfight and Boehner Issues Memo Explaining His Feckless Plan to Sue Obama.

As I've discussed before, I'm skeptical of the originalist foundations of modern standing doctrine.  But I'm even more skeptical that the House vs. Obama case is a "Case or Controversy" under the Constitution's original meaning.  It seems to me that Speaker Boehner's principal complaint is the the President isn't doing his job right, in a way that is injuring the U.S. as a whole.  Whatever one thinks "Case or Controversy" is, this can't be it -- or everyone would have standing to challenge everything.

The counter is that the House, as the body that enacted the laws, is especially harmed by the laws'  non-enforcement.  But this claim seems to misunderstand separation of powers.  Congress has power over legislation; the President has power over execution.  If the President misues his power of execution, that doesn't harm Congress (in its legislative capacity) any more than it harms everyone else -- we all have an interest in the President acting constitutionally within his domain.  Similarly, one could say that we all have an interest in the Supreme Court judging a statutory case correctly; but Congress does not have a greater interest than any of the rest of us just because it passed the statute in the first place.

In contrast, in the census litigation Michael Stern discusses in his post, I agree that Congress had a distinct injury.  As he explains:

The essence of the House’s complaint [in the census litigation] was an informational injury, i.e., the illegal census design would deprive it of specific information that it needed to perform its constitutionally mandated duty of re-apportioning the House of Representatives. This is quite different than the “wholly abstract” injury involved in Raines [v. Byrd, the previous cognressional standing case]. ...

By law the president is required to report the results of the decennial census to Congress in the first week of the regular session of the following year (see 2 U.S.C. § 2a (a)). If the president failed to provide the legally required census data, not only would Congress be deprived of specific information to which it was entitled, but the composition of the House itself could be affected.

Thus one can imagine ways in which the Congress' constitutional role gives it a distinct interest in certain types of executive action.  But (as Stern says) this observation suggests a lack of standing in the House v. Obama litigation, because in that case there is nothing like this sort of particularized injury.

I can accept, as an orginal matter, the general proposition that the "Case or Controversy" language means at minimum that everyone can't sue everyone for everything.  How modern standing law derives its particular intricacies from this basic proposition is a mystery to me.  But that doesn't matter in this case, which seems fundamentally about an abstract injury common to everyone. 

For some contrary views, see the links here.  At best, one can say that the Constitution's original meaning in this area is poorly understood.


The Recess Appointments Decision Part III: How Protective Are Pro Forma Sessions Against Improper Recess Appointments
Mike Rappaport

While people who favor the original meaning of the Recess Appointments Clause were disappointed by the majority decision in Noel Canning, some people argue that at least the Court’s holding as to pro forma sessions puts a significant check on executive power. According to this view, the Senate can simply hold pro forma sessions every 3 days to prevent the President from making a recess appointment. That would prevent recess appointments, because the Supreme Court held that a recess of more than 3 days and presumptively more than 10 days is required to make a recess appointment.

Moreover, these people argue that even if the party opposing the President only controls the House and not control the Senate, it can still block recess appointments. Since neither house can adjourn for more than 3 days without the consent of the other house, the House of Representatives can force the Senate to meet every 3 days (by the House refusing to adjourn for more than 3 days). The party opposing the President can therefore prevent recess appointments so long as it controls one house. Thus, even if the Supreme Court’s holding regarding pro forma sessions conflicted with the original meaning, it at least constrains the Presidents otherwise excessive recess appointment power.

While there is something to be said for this view, it is by no means clear that the pro forma sessions will work to constrain the President. There are two issues here: how many houses the party opposing the President needs to control and whether a single Senator from the President’s party can defeat the pro forma session procedure.

1. How many houses does the party opposing the President need to control? While the Republican House was able to force the Democratic Senate to hold pro forma sessions in 2012, it is not clear that will work in the future. Instead, the party opposing the President might have to control both houses to stop the recess appointments.

The Constitution provides that “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days.” Thus, it would seem that each house can prevent the other from adjourning for more than 3 days and therefore from allowing the President to make a recess appointment. But there is another provision that states that “in Case of Disagreement between [the houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper.”

Under this provision if one house attempts to hold pro forma sessions every three days (as was done in the Noel Canning case) and the other wants to hold a two week recess (to allow the President to make a recess appointment), the President would have the authority to determine that the houses should take a 2 week recess and thereby allow himself to make recess appointments. That would suggest that the party opposing the President would need to control both the House and the Senate to stop recess appointments.

But perhaps the party opposing the President could take another action. It could hold a pro forma session every day. In that event, one might conclude there was no adjournment at all and therefore no “disagreement between [the houses] with respect to the Time of Adjournment.”

2. But even in this situation, a single Senator from the President’s party might be able to prevent the pro forma session from operating. If the two Senators meet for the pro forma session, a third sabotaging Senator could show up and assert there was no quorum. If he did, that would appear to require a quorum determination and a conclusion that there was no quorum. In that event, the pro forma session would presumably not count as a real session and therefore would not have ended the recess.

Perhaps there are some Senate rules that would prevent this from occurring in the way I suggest, but I would question their constitutionality. If those rules prevented the Senate from determining whether there was a quorum, even after a Senator raised the issue, it is hard to see how they would be constitutional, even under the Supreme Court’s decision.

Of course, taking this action might not be costless to the Senator who did it and to his party. If the Senator’s action showed that there was no quorum, then that might require the entire Senate or a majority of it to meet (unless there was agreement between the two houses as to the length of the recess). But this action is nonetheless a way that the President and his party can combat the use of pro forma sessions.

In conclusion, if the pro forma sessions are used to combat recess appointments, there will be ways of responding to those sessions. And that might once again leave the President with broad recess appointment authority, notwithstanding opposition in one or both of the houses to his actions.

(Cross Posted at the Liberty Law Blog)

Timothy MacDonnell: Justice Scalia's Fourth Amendment Text, Context, Clarity, and Occasional Faint-Hearted Originalism
Michael Ramsey

Timothy MacDonnell (Washington and Lee University - School of Law) has posted Justice Scalia's Fourth Amendment Text, Context, Clarity, and Occasional Faint-Hearted Originalism (Virginia Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

Since joining the United States Supreme Court in 1986, Justice Scalia has been one of the most prominent voices on the Fourth Amendment, having written twenty majority opinions, twelve concurrences and eight dissents on the topic. Justice Scalia’s Fourth Amendment opinions have had a significant effect on the Court’s jurisprudence relative to the Fourth Amendment. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision for how technology’s encroachment on privacy should be addressed; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed the originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from these commitments; particularly in the areas of the special needs doctrine and qualified immunity. The article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the Fourth Amendment in favor of law enforcement interests.

RELATED: At Talking Points Memo, Sahil Kapur: Antonin Scalia Emerges As Fighter For Fourth Amendment Privacy Rights.


The Recess Appointments Decision Part II: Pro Forma Sessions Are Not Real Sessions
Mike Rappaport

In my first post, I noted that I thought Justice Breyer’s decision was wrong on all three grounds based on the original meaning of the Constitution. This may surprise some people who believe that the third ground of the Court’s decision – that the pro forma sessions were real sessions and therefore the recesses were not long enough to justify a recess appointment – was a favorable rebuke of the Obama administration. But in my view, the majority’s third ground is probably not in accord with the original meaning.

I have come to this position over time. But the final straw was Justice Breyer’s opinion, which ironically convinced me that the pro forma sessions were not real ones (ironic since he was arguing the opposite position). It is significant that Justice Scalia and the other concurring justices did not join this part of the opinion, suggesting that they may agree with my doubts about this conclusion.

A pro forma session involves two or three Senators meeting for a minute or two. Justice Breyer argues that the Senate is entitled to deference as to its conclusion that the Senate is in session and therefore the Court and the President must treat these sessions as real ones.

But this is mistaken. The Constitution establishes that a majority of the Senators constitutes a quorum. Therefore, one or two Senators cannot operate the Senate. If the Senate was in a recess, a meeting of two Senators would not end the recess. The Senate as a whole would lack capacity to conduct business.

Justice Breyer argues that, based on a reasonable Supreme Court precedent, the Senate is entitled to adopt rules that are reasonably related to a constitutional provision. Thus, any rule that is reasonably related to determining whether there is a quorum is constitutional. And he argues that the Senate operates based on a rule that assumes there is a quorum, unless someone objects and calls for a quorum determination.

But while the Supreme Court precedent Justice Breyer relies upon makes sense, his application of it to the Senate’s “no quorum determination unless someone objects” rule is mistaken. The Supreme Court precedent, which may very well accord with the original meaning, merely means that the Senate can adopt a rule that does a reasonable job of determining whether there is a quorum. It can take attendance and lists who says “here.” Or it can have someone take attendance by observing who is in the room. It does not have to take attendance again every ten minutes, even though it is possible that some Senators left and therefore there is no longer a quorum.

But if two Senators show up, and it is clear to both of them that no one else is in the room, that is not a reasonable method for determining whether there is quorum. That is a way of evading a constitutional provision. It is unreasonable and unconstitutional.

I suppose if someone were to come up with strong historical evidence that this is how Parliament operated and people assumed this rule would operate, I would reconsider. But I doubt two or three people would be a quorum of a house of Parliament or in the colonies.

(Cross posted at the Liberty Law Blog)

Richard Epstein on McCullen v. Coakley
Michael Ramsey

At Defining Ideas, Richard Epstein: Wrong on Abortion Picketing (arguing that the Supreme Court unanimously erred in striking down the abortion clinic buffer zone in McCullen v. Coakley).  From the analysis:

Abortion foes should not be shut out from the opportunity of dissuading women from going through with abortions. But by the same token, any form of intimidation is off limits. From the nineteenth century onward, the line between force and persuasion has always been hard to police in labor picketing cases, both as a common law and constitutional matter, as the correct approach is often highly context dependent.

The issue is no simpler in abortion cases. With unruly crowds repeatedly massed at its doors, shouting at people who want to go through, the facility could obtain some form of injunction in routine fashion. The terms of that injunction would, of course, be contested, but any court would be well within its powers to adopt a fixed rule—stay 35 feet from the entrance way—to reduce the pressure of ad hoc disputes that always arise under some vaguer standard that compels demonstrators not to unduly harass or annoy potential patrons of the business acting in exercise of their constitutional right; ...

So how does the First Amendment change this analysis? In my view, not at all. Recall that the Amendment’s chief office is to prevent legislatures from eroding common law protections of freedom of speech, which did not happen in McCullen. End of case.

And this:

It is tragi-comic that all nine Supreme Court justices have signed on to a set of ad hoc rules that can only make matters worse. One constant misconception in modern constitutional law is that ceaseless balancing somehow serves the interests of justice better than clear rules.

(Via Instapundit).


The Recess Appointments Decision Part I: Nonoriginalism and Originalism
Mike Rappaport

The Supreme Court’s recess appointments decision in Noel Canning was largely a disappointment from the perspective of originalism and the original meaning of the Recess Appointments Clause.

There were three issues involved in the case: (1) the type of recess issue (whether a recess appointment could be made only during an intersession recess or also during an intrasession recess); (2) the happen issue (whether a recess appointment could be made only to a vacancy that happened during the recess, or also to a vacancy that initially arose during the session); and (3) the pro forma issue (whether 1 minute sessions attended by 2 Senators count as real sessions).

A majority decision by Justice Breyer is almost always a bad thing for originalism. And that was true in Noel Canning. The majority got the type of recess issue wrong (saying that a recess appointment could be made during not only an intersession recess but also an intrasession recess). And it got the happen issue wrong (saying that a vacancy could be filled with a recess appointment not only if it happened during the recess, but also if it initially happened during the session).

Some people are happy that the majority still struck down the recess appointments on the ground that the pro forma sessions were real sessions and therefore the Senate’s recesses were too short to allow a recess appointment to be made. But I can’t even take solace in that conclusion, because I think it is likely that the pro forma sessions were not constitutional sessions. (More on this in a future post.)

But there is a silver lining here. The originalist concurrence by Justice Scalia was exceptional (and I personally feel gratified that he relied so heavily in it on my two recess appointment papers — see here and here). Moreover, when I first published my article on the Original Meaning of the Recess Appointments Clause in 2005, virtually no one adopted the view that I defended. And even after the D.C. Circuit surprised everyone by relying on the theory in Noel Canning, an astute observer of the Supreme Court’s separation of powers jurisprudence said at a Federalist Society event that he would buy me dinner if anyone other than Justice Thomas adopted my view of the happen issue. Yet, four justices embraced this view.

Moreover, there was good reason to be skeptical that Justices Alito and Roberts would sign on. Both of them have histories in the executive branch and therefore might have been hesitant to limit the President’s recess appointment power. And both of them have emphasized questions of practice, with Justice Alito especially seeming to be skeptical of originalism. Yet, both joined the opinion, with no reservations.

Justice Breyer’s opinion was obviously not an originalist opinion. It is true that it attempts to camouflage itself in originalist garb, but it is merely a faux originalism. There are two basic problems with the opinion. First, he claims that the Recess Appointments Clause was ambiguous. But Justice Breyer relishes the ambiguity, because it gives him an opportunity to depart from the constitutional constraints. Yet, he was way too quick to decide that the language was ambiguous. It is not enough to say that there were two meanings of “recess” at the time of the Constitution. It was true there were two meanings, but it is pretty clear that the ordinary meaning of recess (which would allow a 30 minute recess) was not employed in the Constitution and that the more technical legislative meaning was used. In this area, Justice Breyer, like other faux originalists, resembles Justice Foster in Lon Fuller’s Speluncean Explorers, whose favorite part of a statute were the holes in them.

Second, Justice Breyer does not attempt to resolve the alleged ambiguity correctly. Statutory purpose was one of the traditional means of resolving ambiguities, but not the way that Justice Breyer uses it – his is a New Dealer approach that allows judges to update the Constitution. Purpose requires putting oneself in the place of the people at the time, given their values and circumstances. It does not involve simply asserting what one regards as a good constitutional result, as Justice Breyer does.

In my next several posts, I will address various aspects of the Recess Appointments decision.

Eugene Volokh on Harris v. Quinn (Updated)
Michael Ramsey

Eugene Volokh argues against Monday's decision in Harris v. Quinn and "The bedrock principle that, except perhaps in the rarest of circumstances, no person … may be compelled to subsidize speech by a third party that he or she does not wish to support":

But what I don’t see is why there should be any First Amendment problem here at all. Yes, if I’m compelled to pay union dues, I’m being “compelled to subsidize speech by a third party that [I do] not wish to support” (whether that subsidized speech is just related to collective bargaining, or to politics more broadly). But I’m compelled to pay taxes, and that compels me to subsidize speech by the government — and by various recipients of government funds — that I do not wish to support. It doesn’t matter how much I disapprove of the views (both governmental and nongovernmental) taught in public schools or public universities. It doesn’t matter how much I disapprove of the views that the government expresses on enlistment in the military, on the environment, on race relations, or on the vast range of other subjects on which the government speaks.

I agree, and would add that this whole line of cases, from Harris back through Keller v. State Bar (1990) to Abood v. Detroit Bd. of Ed. (1977), is dismally lacking in originalist foundations.  Maybe it's a First Amendment problem to require a private person to directly fund another private person's speech (even though, as Professor Volokh says, it's not a constitutional problem to require a private person to fund the government's speech, or to require a person to pay taxes that the government then uses to fund another private person's speech).  But surely that proposition does not follow as a logical necessity from the text or leading concerns of the First Amendment.

That being so, it would be great for originalist justices to offer some founding-era support for the idea.  I'm not aware that any material support has been offered, however.  (It's definitely not offered in Harris, which assumes a background rule of no compelled funding and then asks whether the Abood line of cases require an exception for the union speech at issue in Harris).  True, one could argue that this is another area (like the Fourth Amendment warrent requirement in Riley v. California) where originalists are just following existing precedent while recognizing that the precedent is detached from the text and founding history.  If that's so, however, they should not be extending the precedent; rather (as I argue here) they should be reading it narrowly.  And, although it isn't my area at all, Harris looks like an extension of the Abood line of cases.

UPDATE: Will Baude appears to agree at the end of this post (and also see here).


The Treaty Power and the Necessary and Proper Clause
Mike Rappaport

In my previous post, I argued that the Treaty Power should be interpreted as allowing the President and the Senate to make treaties that involve intercourse with foreign nations, but not simply domestic matters. In this post, I discuss the second constitutional issue raised by the decisions in Bond v. US – whether Congress has the authority under the Necessary and Proper Clause to pass legislation (outside of its other enumerated powers) that carries into execution a treaty. (As with my prior post, I note that I have not fully researched this issues and therefore my views should be regarded as preliminary.)

In analyzing this question, I will assume that the Treaty Power only allows treaties that involve intercourse with foreign nations. If that is true, there are at least two significant positions as to Congress’s authority to carry those treaties into execution:

1. Congress can only pass legislation under the Necessary and Proper Clause that carries into execution Congress’s other enumerated powers, but not the President and Senate’s Treaty Power.

2. Congress can pass legislation under the Necessary and Proper Clause that carries into execution the President and Senate’s Treaty Power.

The first position was articulated by Justice Scalia’s concurrence in Bond, and was joined by Justice Thomas. It was first developed by Nick Rosenkranz. Under this interpretation, while the President and Senate could enter a treaty that involved intercourse with foreign nations that extended beyond Congress’s enumerated powers, Congress could not pass legislation that carried that treaty into execution.

As an initial matter, this position seems strange. After all, a basic purpose of the Constitution was to allow for enforcement of US treaties throughout the country. If Congress could not carry into execution the treaty, then the main enforcement method would be to place the obligations into the treaty itself (which, if it is self executing, is the law of the land), but many provisions for enforcement, such as criminal penalties,are not typically placed into treaties.

One reason why one might read Congress’s authority narrowly is if one was concerned about the federalism implications of such authority. But if the Treaty Power is already confined to matters involving intercourse with foreign nations, one need not worry about Congress exercising unlimited authority. Instead, Congress would be restricted to enforcing treaties involving intercourse with foreign nations. And a check on expansive treaties would be that they required two thirds of the Senate to ratify – a Senate that was initially elected by the State legislatures and therefore was particularly representative of state interests.

The main argument for concluding that Congress does not have the power to enforce treaties is textual. From Justice Scalia’s concurrence:

Start with the phrase “to make Treaties.” A treaty is a contract with a foreign nation made, the Constitution states, by the President with the concurrence of “two thirds of the Senators present.” That is true of self-executing and non-self-executing treaties alike; the Constitution does not distinguish between the two. So, because the President and the Senate can enter into a non-self-executing compact with a foreign nation but can never by themselves (without the House) give that compact domestic effect through legislation, the power of the President and the Senate “to make” a Treaty cannot possibly mean to “enter into a compact with a foreign nation and then give that compact domesticlegal effect.” . . . Upon the President’s agreement and the Senate’s ratification, a treaty—no matter what kind—has been made and is not susceptible of any more making.

How might Congress have helped “carr[y]” the power to make the treaty—here, the Chemical Weapons Conven­tion—“into Execution”? In any number of ways. It could have appropriated money for hiring treaty negotiators, empowered the Department of State to appoint those negotiators, formed a commission to study the benefits and risks of entering into the agreement, or paid for abevy of spies to monitor the treaty-related deliberations of other potential signatories.

Once a treaty has been made, Congress’s power to do what is “necessary and proper” to assist the making of treaties drops out of the picture.

My sense of this textual interpretation is that it shows at best that the language is ambiguous. It is possible that Congress’s power to carry into execution the President’s (and Senate’s) Treaty Power was limited to negotiating the treaty and other related matters. But it is also possible it meant to enforce the actual treaty. It seems permissible to speak of carrying the power to make a treaty into execution by enforcing that treaty. This interpretation gains force from the fact that in England, the King made a treaty and the Parliament passed legislation enforcing it. This was certainly one model that the Framers might have been following.

Given the strong argument for allowing Congress to enforce treaties and the lack of a strong federalism argument against allowing it to do so, I would tentatively interpret this ambiguity in favor of the second interpretation.

John McGinnis on Noel Canning
Michael Ramsey

At Liberty Law Blog, John McGinnis: Noel Canning, Liberty, and the Coase Theorem.  From the introduction:

Conservatives have been celebrating Noel Canning, the recent Supreme Court decision on recess appointments, because President Obama lost 9-0. But in reality the case was a loss both for liberty and the rule of law. While the result was unanimous, the reasoning in Justice Stephen Breyer’s five-person majority dramatically diverged from Justice Antonin Scalia’s four-person concurrence.  And it is the reasoning, not the result, that may shape our constitutional future.  Justice Breyer’s majority opinion elevates practices of the President and Congress over the original meaning of the Constitution.  Adoption of Breyer’s principle of constitutional interpretation threatens our liberty.


Ronald Turner: Justice Clarence Thomas's Conspicuously Nonoriginalist Affirmative Action Jurisprudence
Michael Ramsey

Ronald Turner (University of Houston Law Center) has posted Disparate Treatment: Justice Clarence Thomas's Conspicuously Nonoriginalist Affirmative Action Jurisprudence (19 Texas Journal on Civil Liberties and Civil Rights 251 (2014)) on SSRN. Here is the abstract: 

In the eagerly anticipated but anticlimactic decision in Fisher v. University of Texas at Austin the United States Supreme Court, by a 7-1 vote, held that the United States Court of Appeals for the Fifth Circuit did not correctly apply the strict scrutiny standard of judicial review in assessing the constitutionality of the university’s race-conscious undergraduate admissions process. Joining the Court’s opinion, a concurring Justice Clarence Thomas, an avowed originalist, agreed that the Fifth Circuit did not properly apply strict scrutiny and, going further than the majority, argued that the Court’s 2003 Grutter v. Bollinger decision should be overruled. Conspicuously absent from Justice Thomas’s concurrence is any reference to or application an originalist interpretive methodology. While Justice Thomas has issued originalist opinions in constitutional cases involving, for example, the Commerce Clause, the First Amendment, the Takings Clause, and the Ex Post Facto Clause, he does not employ an originalist analysis when seeking an answer to the question whether certain race-conscious governmental actions violate the Constitution. This essay discusses Justice Thomas’s conspicuously nonoriginalist affirmative action jurisprudence, and provides commentary on the ways in which the nonoriginalist views of Justice Thomas in this area of constitutional law are, in all material respects, the same as Clarence Thomas’s nonjudicial and personal views and positions.